The Personal Website of Mark W. Dawson

Containing His Articles, Observations, Thoughts, Meanderings,
and some would say Wisdom (and some would say not).

The Failures of the Supreme Court

Introduction

In my Observation “Judges, Not Lords” I note that it is an unfortunate fact that in today's judicial system judges often go beyond the scope of their responsibilities. When a judge issues a ruling utilizing convoluted reasoning or stretching the law in which it was never intended to do, they are corrupting the democratic process. A judge is responsible for making sure that the law is equally applied and equally protect all who come before them (as in my Article “The Rule of Law”). Their holdings, rulings, and decisions should be based primarily on the law as it is written, or the intentions of the lawgivers as expressed during the legislative process. Laws that were created to assure a civil society. If a law, or judicial rulings and decisions, is convoluted or distorted, it cannot be followed by the members of the society. The best example of a straightforward law is the United States Constitution. Anyone who has received a basic education in reading, writing, arithmetic, and reasoning can read and understand the United States Constitution. So, it should be with any law, or judicial ruling or decision.

If a judge issues a ruling or decision that is convoluted or distorted, they have stepped outside the bounds of their duties. These type of rulings and decisions are often done to achieve a positive social good (referred to as judicial activism). However, achieving a positive social good is the prerogative of the legislature, elected by the people to achieve this social good. This is best explained by Claude Frederic Bastiat essay, “The Law". Claude Frederic Bastiat was a French economist and political philosopher of the mid-19th century. Even though his examples are of that time, they are perfectly understandable by anyone in today's world. I would encourage all to read this essay, and if I could I would make it required reading for all high school students. When a judge engages in judicial activism, they are no longer being a judge but are becoming lords. Lords are inherently undemocratic and arbitrary, and it should be remembered that if a judge can do something for you, they can also do something against you. We should also be reminded of the words of Alexander Hamilton:

"Liberty can have nothing to fear' from judges who apply the law, but liberty 'has everything to fear' if judges try to legislate"
- Alexander Hamilton

Unfortunately, in the latter half of the 20^th century, and continuing in the 21^st century, many judges and the Supreme Court have stepped over the bounds of applying the Constitution and the laws into the realm of trying to legislate.

Supreme Court Oath of Office

Unlike the Presidential Oath of Office, the wording of the Supreme Court Oath is not explicitly defined in the text of the United States Constitution. However, according to Article VI of the Constitution:

"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a Qualification to any Office or public Trust under the United States."

In 1789, Congress sought to remedy this omission by drafting an official oath. This first version was used until 1861. The text was short, a single sentence. It read:

"I do solemnly swear (or affirm) that I will support the Constitution of the United States."

The First Oath now reads:

"I, ________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God."

This oath, much more specific and lengthy than the original, is now used by every federal office investiture except for the office of the President.

The Second Oath

Appointees to the Supreme Court Bench must not only take the oath listed above but a second oath. This statement is called The Judicial Oath. The Judiciary Act of 1789 established the federal judiciary. The Act set the number of Supreme Court Justices at six (five Associate Justices and one Chief Justice). It also mandated that for the Supreme Court Justices to begin serving, they must swear a second Oath of Office. The original text of this was:

"I, _________, do solemnly swear or affirm that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________, according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States. So help me God."

This oath was used until 1990 when the Judicial Improvements Act replaced the phrase beginning with "according to the best of my abilities..." to "under the Constitution." This language proved reasonably more effective in tying the decisions of the judiciary to the authority of the United States Constitution.

Frequently, Supreme Court Justices have elected to take a Combined Oath which brings the two affirmations together in one statement.

The Integrity of the Supreme Court

The Judicial Branch is a co-equal branch with the Executive and Legislative Branches of the Federal government. As such, it has no more or less power and authority than the other branches. In Marbury v. Madison, 5 U.S. 137 (1803), the U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws, statutes, and some government actions that contravene the U.S. Constitution. Decided in 1803, Marbury remains the single most important decision in American constitutional law. The Court's landmark decision established that the U.S. Constitution is actual "law", not just a statement of political principles and ideals, and helped define the boundary between the constitutionally separate executive, legislative, and judicial branches of the American form of government. Therefore, the courts do have the authority to strike down laws, statutes, and some government actions as unconstitutional, but they have no right to establish any laws, statutes, and some government actions. This makes them reactive rather than proactive in regard to laws, statutes, and some government actions.

If the Judicial Branch becomes proactive, they are subverting the authority, duties, and responsibilities of the Executive or Legislative Branches, which is in itself unconstitutional. The balance between an independent judiciary and the other branches of government is necessary to protect our freedoms and liberties. The courts have no power to enforce their rulings but require the Executive Branch to enforce the ruling, or the Legislative Branch to modify the laws to meet constitutional standards. We obey the Supreme Court decisions because we believe the Rule of Law is essential to maintaining a just society. If the Supreme Court oversteps its bounds, then the citizens of the United States lose some of their fealty to the Supreme Court. If this loss of fealty grows than we lose our belief in the Rule of Law which can have calamitous consequences.

One of the reasons that affect our fealty is the increase of District and Appellate courts issuing nationwide injunctions. Unelected and undemocratic courts are important to The Rule of Law, but these judges must work within the bounds of the Constitution and the law in order to maintain their integrity. Having a judge issue a nationwide injunction that many believe is outside the purview of the court places the Judiciary Branch as superior to the Executive and Legislative branches. The long times it takes to overrule these injunctions increase the loss of fealty to the courts. We must find some way to restrict these nationwide injunctions, decrease the times required to overturn these decisions, and remove judges that continually issue these nationwide injunctions as outlined in my observation “Judges, Not Lords”.

The best means to uphold the integrity of the Supreme Court is by the Supreme Court upholding the Constitution and ruling within the laws passed by Congress and signed by the President unless such laws or actions by the Legislative or Executive Branches are deemed unconstitutional by the Supreme Court. I am very concerned with upholding an independent judiciary, however, I am also just as concerned with the judiciary acting within the bounds of their constitutional duties and responsibilities.

Court Decisions

Many Supreme Court decisions have been very controversial and subject to debates and criticisms. Debate and criticisms of all the branches of government, including the Judiciary, are essential freedoms in America. These debates and criticisms help us to improve and make our society better. In the past, some of these debates and criticisms have led the Supreme Court to overturn or modify previous decisions. Stare Decisis – a Latin for "to stand by a decision” is an important concept in the Rule of Law, but it does not mean that a decision is set in stone for all time. Incorrect or improper decisions by the courts, including the Supreme Court, need to be modified or set aside to improve our society.

In my opinion, the following are some of the most egregious decisions that the Supreme Court has made in the latter half of the 20^th century and continuing in the 21^st century and need to be reconsidered.

Abortion

Roe v. Wade, 410 U.S. 113 (1973), is a landmark decision issued in 1973 by the United States Supreme Court on the issue of the constitutionality of laws that criminalized or restricted access to abortions. The Court ruled 7–2 that a right to privacy under the Due Process Clause of the 14th Amendment extended to a woman's decision to have an abortion, but that this right must be balanced against the state's interests in regulating abortions: protecting women's health and protecting the potentiality of human life. Arguing that these state interests became stronger over the course of a pregnancy, the Court resolved this balancing test by tying state regulation of abortion to the third trimester of pregnancy.

Perhaps no other decision since Dread Scott has been more controversial or divided our country than the Supreme Courts decision on abortion. And perhaps no other decision since Dread Scott has been more wrongly decided. Wrongly decided because the decision did not take into account the human rights of the unborn (as Dread Scott did not take into account the human rights of slaves), but only considered the rights of the pregnantarticles mother. My on "The Abortion Question" and "The Analogy of Abortion and Slavery" examines these human rights in more detail. My point, here within, is that the Supreme Court had the right to examine this issue but also had the responsibility to examine the human rights of the unborn. Without examining both sides of the issue an improper decision was a foregone conclusion. If they had examined both sides of the issues and ruled there would have been less vitriol controversy. If the American people disagreed with their decision, after they examined both sides of the issue then they could have worked to overturn the decision by constitutional means.

Affordable Care Act

On November 14, 2011, the Supreme Court of the United States issued a writ of certiorari to the United States Appeals Court for the Eleventh Circuit to consider appeals to its rulings in National Federation of Independent Business v. Sebelius and Florida v. United States Department of Health and Human Services. The Court heard oral arguments March 26–28, 2012 and decided the consolidated case on June 28, 2012.

Although the Supreme Court declared that the law could not have been upheld under an argument based on the regulatory power of Congress under the Commerce Clause, the Court declared that the legislatively-declared "penalty" was constitutional as a valid exercise of the Congressional power to tax, thus upholding the individual mandate. The Court also limited the expansion of Medicaid initially proposed under the ACA. All provisions of the ACA continue to be in effect, with some limits on the Medicaid expansion.

For the first time in United States history, it was required that its residents purchase a commercial product or face a fine for not doing so. Regulation of non-economic activity under the Commerce Clause is possible only through the Necessary and Proper Clause. The Necessary and Proper Clause confers supplemental authority only when the means adopted to accomplish an enumerated power are 'appropriate', are 'plainly adapted to that end', and are 'consistent with the letter and spirit of the constitution.' Requiring citizen-to-citizen subsidy or redistribution is contrary to the foundational assumptions of the constitutional compact. As such, I believe that the Supreme Court required a redistribution from its citizens to health insurance companies, which is plainly unconstitutional. This is not the same as a State automobile insurance mandate as this mandate is for the privilege of driving an automobile on State and Locality government owned roads. The Supreme Court also redefined the Affordable Care Act fine as a tax, even though both sides of the issue declared it was not a tax. In effect, the Supreme Court rewrote the law to shoehorn it into constitutional status. The Supreme Court used “Torturous and Convoluted Reasoning” to accomplish this feat. In doing so it became a proactive court decision which encroached on the Freedoms and Liberties of the American people.

Eminent Domain Ruling

Kelo v. City of New London, 545 U.S. 469 (2005) was a case decided by the Supreme Court of the United States involving the use of the eminent domain to transfer land from one private owner to another private owner to further economic development. In a 5–4 decision, the Court held that the general benefits a community enjoyed from economic growth qualified private redevelopment plans as a permissible "public use" under the Takings Clause of the Fifth Amendment.

The case arose in the context of condemnation by the city of New London, Connecticut, of privately owned real property, so that it could be used as part of a “comprehensive redevelopment plan.” However, the private developer was unable to obtain financing and abandoned the redevelopment project, leaving the land as an undeveloped empty lot.

This decision expanded the bounds of eminent domain beyond what was meant by the Founding Fathers. The Founding Fathers envisioned the “public use” for all the public to utilize. This meant forts, public offices, public roads, and other property that any one of the public could use. They never envisioned the government seizing property from one person to sell to another person. I believe that the Founding Fathers would have been appalled by this decision, as this often happened to the colonists by the British government and was one of the contentions that led to the Revolutionary War.

Bush v. Gore

Bush v. Gore, 531 U.S. 98 (2000), was a decision of the United States Supreme Court that settled a recount dispute in Florida's 2000 presidential election. The ruling was issued on December 12, 2000. On December 9, the Court had preliminarily halted the Florida recount that was occurring. Eight days earlier, the Court unanimously decided the closely related case of Bush v. Palm Beach County Canvassing Board. The Electoral College was scheduled to meet on December 18, 2000, to decide the election.

As the Constitution stated in Article II, Section 1, Clause 1:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

“Each State shall appoint, in such Manner as the Legislature thereof may direct,” makes it the responsibility of the State legislators to determine election procedures. The Supreme Court reached the proper decision by improper reasoning. They simply could have stated the legislators were responsible for the election, and the courts had no authority to intervene. If the people of a state were unhappy with their legislators’ actions, they had the possibility of not voting for the legislator in the next election. If the people were unhappy with the court’s decision, they had no recourse. In effect, this would have put the courts in the position of deciding an election and not the people. This is antithetic to a representative democracy elected by the people. The courts have the responsibility to determine if the election laws and procedures are constitutional and have Equality Under the Law & Equal Protection of the Laws, but they have no authority to intervene in an actual election except to make sure that the State election laws, as written, are enforced.

Gun Control

District of Columbia v. Heller, 554 U.S. 570 (2008), is a landmark case in which the Supreme Court of the United States held that the Second Amendment protects an individual's right to possess a firearm, unconnected with service in a militia, for traditionally lawful purposes, such as self-defense within the home, and that the District of Columbia's handgun ban and requirement that lawfully-owned rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock" violated this guarantee. It also stated that the right to bear arms is not unlimited and that guns and gun ownership would continue to be regulated. It was the first Supreme Court case to decide whether the Second Amendment protects an individual right to keep and bear arms for self-defense.

As the Constitution states in the Bill of Rights Amendment II:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

I do not understand what part of “shall not be infringed” does the Supreme Court not understand. Regulating a person’s human right is infringing on their human right. As I have stated in my article "Natural, Human, and Civil Rights" the right to keep and bear arms is a natural right. The Right to Keep and Bear Arms is the right to protect yourself, your family, your neighbors, and society from all enemies both foreign and domestic. These enemies may be criminals, mobs, insurrectionist, and even a government that infringes on your Human Rights. Without this protection, you cannot have Life, Liberty, and the Pursuit of Happiness as stated in the Declaration of Independence. The Supreme Court needs to strike down all laws and regulations regarding gun control as an infringement on your human and constitutional rights. If crimes are committed utilizing a firearm then criminal arrests and prosecutions should occur, not the banning of firearms. Just as if crimes are committed utilizing a knife then criminal arrests and prosecutions should occur, not the banning of knives. And just as if crimes are committed utilizing a club then criminal arrests and prosecutions should occur, not the banning of clubs. This reasoning can go on ad nauseam. Crimes need to be prosecuted and not the banning of items utilized in a crime. Just as you have a human and constitutional right to free speech you have a human and constitutional right to keep and bear arms.

Gay Marriage

Obergefell v. Hodges, 576 U.S. (2015) is a landmark civil rights case in which the Supreme Court of the United States ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The 5–4 ruling requires all fifty states, the District of Columbia, and the Insular Areas to perform and recognize the marriages of same-sex couples on the same terms and conditions as the marriages of opposite-sex couples, with all the accompanying rights and responsibilities

Nowhere in the Constitution is there any mention of marriage. Therefore, marriage is covered under the Bill of Rights Amendment 10:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

As the Constitution and its amendments do not directly address marriage it can be inferred that this is reserved to the states or to the people. Marriage is an institution that is defined and regulated by State laws. Therefore, it is the States right to define the parameters of marriage. If the States wish to include homosexuality within there marriage laws than they have every right to do so.

Marriage, also called matrimony or wedlock, is a socially or ritually recognized union between spouses that establishes rights and obligations between those spouses, as well as between them and any resulting biological or adopted children and affinity (in-laws and another family through marriage). The definition of marriage varies around the world not only between cultures and between religions but also throughout the history of any given culture and religion, evolving to both expand and constrict in who and what is encompassed, but typically it is principally an institution in which interpersonal relationships, usually sexual, are acknowledged or sanctioned. In some cultures, marriage is recommended or considered to be compulsory before pursuing any sexual activity. When defined broadly, marriage is considered a cultural universal. A marriage ceremony is known as a wedding. The best available evidence suggests that it’s about 4,350 years old. For thousands of years before that, most anthropologists believe, families consisted of loosely organized groups of as many as 30 people, with several male leaders, multiple women shared by them, and children. As hunter-gatherers settled down into agrarian civilizations, society had a need for more stable arrangements. The first recorded evidence of marriage ceremonies uniting one woman and one-man dates from about 2350 B.C., in Mesopotamia. Over the next several hundred years, marriage evolved into a widespread institution embraced by the ancient Hebrews, Greeks, and Romans. But back then, marriage had little to do with love or with religion.

As to the question is, is a marriage a human right? Nowhere in history has there been an assertion that marriage is a human right. There is no question that as humans we have the right to freely associate with anybody we choose to. This association may be in any form that both parties are agreeable to. As I have stated in my observation “Homosexuality and Marriage” homosexuals have human rights. Therefore, heterosexual and homosexual associations are a human right. There is also a human right to privacy. What you do in the confines of your own home is your business, as long as it does not violate the human rights of others who may reside in your home. The government has no business of being involved in what happens in your free associations or privacy rights, except to protect the human, constitutional, and civil rights of others who you are involved with.

I believe that a State, or States, can allow for a homosexual marriage if this allowance is done through the normal legislative process (i.e. not court action) of the State or States. To do so otherwise is to infringe upon the liberties and freedom of the people to determine what is permissible, or not permissible, within their State. To do otherwise is a violation of the 10^th Amendment of the Constitution.

The Presidential Elections of 2020

The failure of the Supreme Court in acting on the issues of the 2020 elections on the suspicions of outright vote fraud, as well as the veracity of the allegations of vote fraud, and the possible unconstitutional actions of the State Executive branches and State Judiciaries in violations of the State Legislatures laws of elections are of supreme importance in our democratic process of assuring a free and fair election.

If these allegations of vote fraud and unconstitutional actions prove to be true, then we have an assault on our Freedoms and Liberties. In their efforts to avoid becoming involved in this political conflict and to preserve what they believe is the integrity of the Supreme Court, the Supreme Court is violating their sworn duty to “Preserve, Protect, and Defend the Constitution of the United States”. For without a Free and Fair Election, we cannot have a republican government that is representative of the will of the people. For the will of the people is being subverted by possible corrupt voting practices and possible unconstitutional actions of the State Executive officers and State Judiciaries. And I would remind the Supreme Court the best means to preserve the integrity of the Supreme Court is to preserve the integrity of the Constitution.

By not taking on a Supreme Court review, by means of legal sophistry in denying these lawsuits, the actions by the State Officials and State Courts of these alleged violations cannot be determined if they are a violation of the Constitutional Right of the State Legislatures to determine the manner of elections as stated in the Constitution as “shall be prescribed in each State by the Legislature thereof”, as well as violations of the Fourteenth Amendment of “equal protection of the laws”. This failure of the Supreme Court to determine the truth of election law violations or unconstitutional acts by State officials calls into question the validity of the results of the 2020 election. And the legality of these actions cannot be determined by State judicial review, as the very State officials that would make these determinations are the same officials who are alleged to have violated the laws and the Constitution. Therefore, we would have the situation of a person being the judge of themselves.

All of this is antithetical to the principles of the Constitution and an assault upon our Freedoms and Liberties. I am aware that if the Supreme Court takes on this responsibility to determine if free and fair elections were violated in the 2020 elections, it will cause great consternation and disquietude to the government and society in America. However, to not take on this responsibility may cause more harm to government and society, as a large percentage of the people of America no longer had faith in their government to preserve our Freedoms and Liberties. Such a lack of faith in government often leads to civil unrest and possible Civil War to preserve our Freedoms and Liberties.

Conclusions

To preserve the integrity of the courts and maintain the fealty of the people to the court’s decisions, judges must be work within the Constitution and laws that are constitutional. To do otherwise is to endanger our freedoms and liberties, and perhaps our republic.

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