In just one year’s time we have witnessed the overturning of Roe v. Wade and the finding that affirmative action in college admissions is unconstitutional. In addition, we have seen the Supreme Court offer a strong rebuke to excessive executive power in the tyrannical style of Barack Obama and Joe Biden with a return to the constitutionality of separation of powers. Of all the gloom and turpitude that we face, the threats against our liberty that we live under, the good news coming from the Supreme Court should hearten us all.
I don’t suspect that the likes of Jonah Goldberg, Steve Hayes, Bill Kristol, Kevin Williamson and so many other Never Trumpers are hoisting a glass to toast Donald Trump’s role in these two lifetime landmark cases, issues that have been conservative cornerstones for a half of century. If they can’t show gratitude, perhaps they will be pleased with this turn of events. But pride befalls us all, of all the deadly sins.
But love him, hate him, or be indifferent to the 45th president, his court has changed history. He is responsible for the emergence of the most conservative court in our lifetimes. And be forewarned, the Left and the Democrats are on fire in a rage that will burn long into the night, into the months and years ahead. Retribution will come, which puts the pressure on the elections next November in an entirely new light. To the Left everything is on the table, court packing, adding Senators, imposing “emergency” measures on upcoming elections, be not naïve of the measures that Democrats will take to reestablish control over the Judiciary.
Not to be a downer on the parade, however, of the recent court decisions, there is one miss, and it isn’t immaterial or irrelevant. This being the Court’s decision on Moore v. Harper. Article I, Section 4, Clause 1 in the U.S. Constitution clearly states:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.
The Constitution is very clear on this matter, or maybe it is just written in English too plain to understand. It doesn’t say the State Governor, the State Courts, or any other State actor. And yet the Supreme Court, with John Roberts and Bret Kavanaugh siding with the leftists, determined that it must mean something else. That the State Legislatures are not the arbiter and decider on federal elections in their States and that State Courts can intervene. This is not just unconstitutional but a recipe for disaster.
Why is this important? Of all the attacks on our freedom, the withering and destruction of our liberties, the one bulwark against this onslaught is not the next president, the next election, or some federal policy of lowering taxes or decreasing regulations. Important yes, but what can save us, sadly no.
That bulwark is the concept of Federalism, the preservation of the 10th Amendment and the entire edifice of State Sovereignty. So long as we preserve that, we have a fighting chance of saving our Republic. Minus that, we are done, and it won’t matter who gets elected president, takes the Senate or any other magical machination in the halls of D.C. And yet the court in Moore v Harper, as with so many other cases, fell back on a (mis) reading of the 14th Amendment and the “Reductions Clause” to ignore the clear intent of the Constitution.
Indeed, it is the overall misreading of the 14th Amendment, perhaps more than any other matter, that has put us in such a Constitutional crisis for this past half century. The preeminent book of scholarship on the 14th Amendment that has wrecked such havoc on our laws and freedom can be found in Raoul Berger’s, “Government by Judiciary: The Transformation of the Fourteenth Amendment.” In this forward to the book, Forrest McDonald, Jr. wrote:
“Berger…..learned and reported was that for the better part of a century the Supreme Court had been handing down decisions interpreting the Fourteenth Amendment improperly, willfully ignoring or willfully distorting the history of its enactment. More specifically, he found that the authors of the Amendment, far from contemplating a social and political revolution, as defenders of judicial activism maintained, intended only to protect the freedmen from southern Black Codes that threatened to return them to slavery. More specifically yet, Berger found that the two key passages in the Fourteenth Amendment—privileges or immunities of citizens and due process of law—far from being vague and elastic, as activists maintained, were “terms of art” that had precise, well-understood, and narrow legal meanings. “Equal protection,” a new concept, was identified by the framers with the right to contract, to own property, and to have access to the courts.”
It is beyond my scope to even begin to try and redress these wrongs and missteps, but let it be said, those that have glided along the edges, such as the constitutional scholar John Eastman in just one area, questioning the birthright citizenship clause from the 14th Amendment, is now facing disbarment and possible jail time. Woe be to the true patriots.
The misstep of Roberts and Kavanagh is not a small one and will need to be addressed at some time soon. It may fall into the shadow of these other cases, and I would never underestimate the earth-changing impact of what the court has done in the past year, but we will have to revisit this.
Ronald Reagan famously states “Freedom is never more than one generation away from extinction.” I second that and will add, given the Left’s relentless attacks on our liberty, that we need not fight just in every generation, but in these times, we need to fight each and every day to stand for liberty and resist this assault on our freedoms.
And finally, I will raise a glass and toast the 45th president of the United States, Donald J. Trump, for changing the course and direction of the Supreme Court, for his preservation and protection of our blessed Constitution. It is not for us know or understand the ways of God and Providence. But I believe that His will and His hands were laid upon our 45th President in the determination of our current Supreme Court. Cheers!