('76 Contributor) In a huge victory for school choice, the Colorado Court of Appeals last month overturned the injunction placed on the Douglas County Choice Scholarship Program (CSP).
The CSP is Colorado’s only school-choice voucher program. Any student who lives within the Douglas County School District, and has resided there for at least one year, is eligible to apply to receive up to 75 percent of the state per-pupil funding to attend a school of choice. If there are more applicants than scholarships, a lottery is held to award the vouchers. Parents may also pay out of pocket to supplement the voucher coverage.
In 2011, the ACLU of Colorado, the National ACLU Program on Freedom of Religion and Belief, Americans United for the Separation of Church and State, and others filed suit in Colorado state court, claiming that the school choice option violated the statutory provisions of the CSP itself and seven provisions of the Colorado constitution, including, importantly, the establishment clause in the Colorado constitution. As an ACLU spokesperson said after winning an injunction to prevent the program from being implemented: “By paying for students to attend religious schools, the state was unconstitutionally promoting and subsidizing particular faiths.”
The Colorado Court of Appeals saw things differently, overturning the injunction. There is much to laud in the opinion, and the immediate beneficiaries of the ruling are the 304 students whose rights under the program are now vindicated. The Court of Appeals has given a particular victory in its analysis of how courts should analyze incidental funding of religious schools.
In rejecting the plaintiffs’ establishment clause claims, the appellate court applied the decision of the U.S. Court of Appeals for the Tenth Circuit in Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008). In this decision, penned by then-Judge Michael McConnell, the Tenth Circuit held that it violated the First Amendment to provide financial aid to students attending sectarian institutions but not to students attending “pervasively sectarian” institutions. As the Tenth Circuit noted, “inquiring into the pervasiveness or intensity of… belief” of religious institutions receiving funding is a form of anti-religious discrimination.
In the case challenging the CSP, the Colorado appeals court applied the same logic, holding that
the inquiry in which the district court engaged—into the degree to which religious tenets and beliefs are included in participating private schools’ educational programs—is no longer constitutionally permissible. In the thirty years since Americans United was decided, the United States Supreme Court has made clear that, in assessing facially neutral student aid laws, a court may not inquire into the extent to which religious teaching pervades a particular institution’s curriculum. Doing so violates the First Amendment.
This means that a First Amendment violation does not occur when a facially neutral law happens to fund religious school. Rather, the true First Amendment violation occurs when an activist court seeks to scrutinize the curriculum of schools funded by vouchers to sniff out religion it doesn’t like.
Ultimately, this decision shows once more that neutral voucher programs do not infringe upon taxpayers’ liberties. Educational choice gives parents control over their share of funding, making education dollars more mobile and allowing parents to choose the best schooling options for their children. The simple fact that some of this money goes to religious schools does not violate the First Amendment.
It is a travesty for Americans to be forced into only one option for their children’s schooling. School choice has proven, time and time again, to produce better educational outcomes than government-assigned schools. As HLindsey Burke of The Heritage Foundation writes:
School choice has led to improved academic outcomes, higher graduation rates and increased student safety. It has improved parental satisfaction with their child’s academic and social development, and satisfaction with their child’s school overall. And it allows parents to access educational options that meet their child’s unique learning needs.
Last month’s ruling affords Douglas County students that opportunity.
Brittany Corona graduated from CCU in politics and pre-law in 2012, and is currently a member of the Young Leaders Program at The Heritage Foundation.
('76 Contributor) “Mere precedent is a dangerous source of authority,” warned Abraham Lincoln in an 1857 speech. Yet the United States Supreme Court has grown too comfortable ruling on precedent or statute and avoiding constitutional questions— and the citizens of the United States are to blame. The precedents behind Supreme Court case Shelby County v. Holder, argued last month, prove this judicial deconstruction.
The question before the Court regards the constitutionality of section five of the 1965 Voting Rights Act (VRA). When the VRA came to the Court four years ago in Northwest Austin Municipal District Number One v. Holder, the Court offered an opinion without considering the constitutional question. They did so by a doctrine known as constitutional avoidance. The Court used this doctrine to uphold the statute in question without reference to the Constitution. Such an act is antithetical to a constitutionally limited government of limited purposes, but even worse is the utter lack of outcry from the American citizenry.
This supposed doctrine of avoidance comes from a precedent set forth by the Marshall Court in 1936. It stated, “The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of”. In other words, the Constitution is the last authority, not the first. If there exists another way to rule on the case, do not bother with the Constitution.
This doctrine represents the greatest threat to self-governance: the abandonment of the Constitution. The experiment in self-governance set forth in 1789 relied on a constitutionally limited government. The American Constitution was written and established with a purpose, not to mention a strong degree of permanence. This rule of law is what sets American constitutionalism apart from unwritten constitutions—which are based on precedent— because supremacy in governing is found in the Constitution, not the office holder. The Constitution is the ultimate authority. Therefore, it is antithetical to the American constitutional order for the highest Court to rule from precedent or statute, while consciously avoiding the constitutional question.
Constitutional avoidance is particularly egregious in a case dealing with the VRA, such as Shelby. The VRA was enacted in 1965 to ensure every American his or her constitutional right to vote under the Fifteenth Amendment. Section two of the VRA sufficiently does this. However, section five, the statute in question, was only enacted as a temporary measure to counter discrimination in states deemed discriminatory by the U.S. Attorney General. It mandated these states to submit any political districting changes to the Department of Justice for review. This measure was only supposed to last five years; yet, it has been extended four times, and is still in effect.
Although necessary in 1965, the continued renewal of VRA’s section five is a federal intrusion into state and local government. The Northwest case questioned this federal intrusion. However, the Court ruled that the plaintiff was entitled to apply for exemption per section five, and therefore it would be unnecessary for the Court to decide on constitutionality.
Like Northwest, the question in front of the Court for Shelby directly regards Congressional power over voting districts in states under Article Four and the Tenth Amendment. The question too long evaded must now be decided fully. However, there is nothing stopping the Court from ruling once again on the doctrine of avoidance.
With constitutional order being jeopardized by the very office intended to guard it, where is the civic outcry?
This is the most disheartening truth revealed by the doctrine of constitutional avoidance: the American public has lost its civic responsibility— the core tenet of limited government. Self-governance requires that the people maintain a certain reverence for their Constitution, fully understanding its purpose to secure unalienable rights, and jealously defending it from encroachments of federal powers. The people must hold the government accountable to the limited powers they granted in 1789. The limited powers serve a purpose. If the powers are stretched, freedom in America is stretched, and self-government ceases to exist.
Shelby may redeem the poor decision of Northwest, restoring Constitutional order. Or it may also fall subject to the unfounded doctrine of constitutional avoidance. Regardless of the Court’s decision, the people must wake up and recognize the encroachments to their liberty, especially when the highest tribunal utilizes a doctrine that completely avoids the document of ultimate authority—the document of the people, by the people, and for the people.
We need to spread the word about getting Obama out of office. People are not terribly happy with Romney, neither am I. But I think the best advice we can start to push now is control of the Supreme Court.
Antonin Scalia is 76, Anthony Kennedy is 76, Clarence Thomas is 64, Ruth Ginsburg is 79, Stephen Breyer is 74, and Samuel Alito is 62. The rest are younger than we are. The current makeup of the court is approximately five conservative, four liberal. If Obama wins and Ginsburg retires we will get a liberal candidate, possibly far left, depending on what the makeup of the new Senate is. This small shift will change the balance of the Court for the next four years.
Kennedy will be 80 toward the end of Obama's last (hypothetically) year of rule. The three young ones, Sotomayor, Kagan and Obama's final appointee will be around for another generation. They will all be, not just liberal but left to far left. It is reasonable to assume that adding another leftist to the Court will necessarily change the nature of decisions into the lives of our grandchildren.
The only way to preserve the America we know is to have Republican presidents appointing moderate Supreme Court justices. Therefore, no matter how much you dislike Romney, in the final analysis the vote this year is easy. In this case all the palaver about the economy and Islam and all the other secondary issues must take a back seat to our real future – the nature of the Supreme Court.
For anyone who naively thought the Supreme Court would render a clean and tidy decision on ObamaCare, Chief Justice John Roberts' majority-of-one opinion should be instructive.
Rarely does the high court render an opinion that draws bright lines by simply applying the constitution as written. More often, the court's opinion is sufficiently muddled that a future court in a similar case can arrive at any decision it desires simply by selectively quoting only the passages that support its desired outcome and ignoring those that do not.
Roberts did exactly that in finding ObamaCare's insurance mandate unconstitutional under the constitution's Commerce Clause: "[T]o permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority."
But next Roberts ignored the court's precedent that distinguishes a "tax" from a "penalty," as the dissenting conservative justices noted: "We have never held that any action imposed for the violation of the law is an exercise of Congress' taxing power - even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty."
Roberts therefore concluded - and was joined by the court's four activists - that the mandate that everyone purchase insurance could survive as a proper exercise of Congress' power to tax.
Does it matter whether the mandate falls within Congress' power to regulate commerce or the power to tax? In this case, it doesn't. Only when future courts choose to follow or ignore Roberts' attempt to corral Commerce Clause authority will we be able to evaluate the supposed silver lining of this obfuscatory cloud.
Several observers speculate that Roberts changed his position at the last minute after initially siding with the rest of the court's conservatives who were prepared to strike down ObamaCare lock, stock and barrel. These observers site inconsistencies in the text of the conservative dissent that make it appear that their dissenting opinion was originally written as the majority opinion.
If so, was Roberts motivated by a desire to prevent the court from appearing too political - a concern that never deters judicial activists - or was he intimidated by the specter of President Obama campaigning against the Supreme Court, as FDR did after the court invalidated much of his New Deal? It's doubtful we will ever know the answer.
In the wake of this mess, both the political and legal landscapes are intriguing.
Americans are left with the clear message not to expect the court to intervene to protect our freedoms - especially not after voters entrust the reins of power to Barack Obama, Nancy Pelosi, Harry Reid and their big government fantasies. Today more than ever, no one will protect our freedom if we don't do it for ourselves.
If the voters want to reject ObamaCare, they must reject Obama come November. It's as simple as that.
ObamaCare and its costly, coercive insurance mandate won't be the foremost issue in the election, but it will play a more prominent role than if the court had thrown it out.
Moreover, the court's decision will now serve to galvanize those opposed to ObamaCare's budget-busting cost, both to Americans individually and to the nation as a whole.
If they win the White House and the Senate, Mitt Romney and the Republicans clearly have a mandate to repeal ObamaCare and replace it with something that respects personal, economic and religious freedom, that doesn't drive us further into debt, and that moves America away from the European model of socialized welfare and toward sustainability.
Meanwhile, Barack Obama can spend these next few months explaining why he signed the largest middle-class tax increase of alltime in order to pass a health insurance bill that has driven costs higher for American families, exploded our national debt, and is supported by barely one-third of the public.
Isn’t it ironic that the Smartest President Ever – according to one historian – can say something so ridiculous that most high school civics students would recognize his statements to be hogwash?
After the Supreme Court concluded its hearings on the Affordable Care Act (aka “ObamaCare”), President Obama said, during a White House news conference at which he clearly had to anticipate such questions, that it would be “unprecedented” and “extraordinary” for the Court to strike down his health care law as beyond the constitutional limits on the powers of Congress.
He concluded that sentence with another whopper: that ObamaCare “was passed by a strong majority of a democratically-elected Congress.”
Lastly, he claimed that it would be “a good example” of “judicial activism” if “an unelected group of people would somehow overturn a duly constituted and passed law.”
Each of those statements is, to put it charitably, dubious.
Judicial review of laws passed by Congress is among the basic responsibilities of our Supreme Court, first established in an opinion written in 1803 by Chief Justice John Marshall.
The Supreme Court has a 209-year history of invalidating laws it judges to be beyond the powers which we the people” gave to government via the Constitution. Sometimes these decisions please conservatives; other times, they please liberals. No matter, a court ruling that all or parts of ObamaCare are unconstitutional would hardly be the first of its kind.
Obama surely knows better, even if he wasn’t really a “professor” of constitutional law, as Hillary Clinton’s 2008 campaign discovered.
So did the smartest, most articulate president simply misspeak? Did he think he could fool all of the people on this score? Or did he somehow think he could intimidate the Supreme Court?
Who did he think he was fooling by claiming ObamaCare “was passed by a strong majority”? It’s hard to fool the entire country about events that happened just two years ago amid one of the most highly watched debates in the last 50 years.
Congress passed ObamaCare 219 to 212 with every Republican plus 34 Democrats voting against it. Bare majority would be more accurate.
Finally, the President tried to steal a conservative critique of the courts – that of judicial activism – and redefine for his own purposes.
Obama, it seems, would have us believe that judicial activism occurs any time the Supreme Court strikes down an act of Congress. Or perhaps he wants us to think that conservatives hold this simplistic understanding.
Again, this is both intellectually lazy and factually dishonest.
The First Amendment says “Congress xx shall make no law xx respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press . . .” (emphasis added).
If Congress makes a law that prohibits certain forms of political speech just before an election, that’s a clear violation of the First Amendment, and the Court should rule it unconstitutional – as it did in another decision that Obama has criticized.
Judicial activism occurs when justices invalidate an act of Congress based upon their own opinions or policy preferences — not based on the plain text of the Constitution.
Activist judges try to cloak their activism in something that seems constitutional. Recall that Roe v. Wade struck down state laws restricting abortion not by quoting the constitution itself but by citing “penumbras” and “emanations” that were supposedly related to actual constitutional rights. Even many liberals now acknowledge that Roe was ill-conceived.
Such exaggerations and falsehoods merely add to the broken promises of ObamaCare. Rather than bring down premiums by $2,500 as promised, ObamaCare will increase premiums. We also know that even if you like your current health plan, there’s a good chance you won’t be able to keep it.
Perhaps the only thing more alarming than the excesses and overreach of ObamaCare is the long march of falsehoods and deliberate misrepresentations employed to justify it.
Mark Hillman served as Colorado Senate Majority Leader and State Treasurer. He is now a Centennial Institute Fellow. To read more or comment, go to www.MarkHillman.com.
When Gov. John Hickenlooper announced that the state will appeal a Denver court’s ruling that the state inadequately funds education, he acknowledged what Judge Sheila Rappaport — and previously the Colorado Supreme Court — would not: money is a finite resource, even when it’s spent on worthy causes and when it’s spent by government.
The state legislature allocates $4.3 billion to educate more than 800,000 students — just under $6,500 each — in K-12 public schools. According to the Colorado Department of Education, other sources bring that total to a statewide average of nearly $13,000, as of 2009-10.
Over two years ago, the supreme court ruled, in a contentious 4-3 decision, that a lower court should entertain claims brought by a group of parents and school districts that the state constitution’s call for a “thorough and uniform” system of free public schools should be interpreted to require a specific funding amount.
That lawsuit, Lobato vs. Colorado, reverted back to Rappaport’s courtroom, albeit with instructions that “the trial court must give substantial deference to the legislature’s fiscal and policy judgments.”
Rappaport’s decision, however, offered no such deference. Her ruling reads like a brief for the plaintiffs — not like a judgment that gives even a modicum of respect to the legislature’s constitutional authority to fund public schools or, more broadly, to adopt a state budget.
She condescendingly dismissed the state’s arguments, while fawning over various creative claims and tendentious documents provided by the Lobato plaintiffs, leading to these incredible conclusions:
* “[T]he entire system of public school finance . . . is not rationally related to the mandate of the Education Clause.”
* “There is not one school district that is sufficiently funded.”
* “Current economic conditions . . . have made an unworkable situation unconscionable. But Colorado’s history of irrational and inadequate school funding goes back over two decades.”
If irrationality is a disqualifier, then Rappaport’s decision is on thin ice.
For example, she consults the dictionary to accurately define “rational,” “irrational” and “relationship” because the Supreme Court used those terms in remanding the case. She does not, however, provide that same level of analysis to ascertain what Colorado’s founders intended when wrote, “[T]he general assembly shall . . . provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state . . .” (emphasis added).
Because “thorough” and “uniform” appear in the state constitution — unlike “rational,” “irrational” and “relationship” — a judge seeking to objectively apply the law might want to know if those terms dictate a necessary and quantifiable level of spending.
Of course, they do not. An earlier supreme court said, “We are unable to find any historical background to glean guidance regarding the intention of the framers.”
Rappaport adopts the Lobato plaintiffs’ argument that, because lawmakers have implemented a means of measuring schools’ and students’ performance against quantifiable expectations, the state is obligated to radically increase funding, perhaps to nearly double current levels.
Her ruling rests on the plaintiffs’ creative assertion that a specific funding mandate is created by the convergence of standards and assessments, the constitution’s “thorough and uniform” clause, and the constitutional stipulation that local school boards control instruction.
She never mentions “emanations and penumbras,” but clearly Judge Rappaport, like judicial activists before her, is blessed with a rare talent entrusted to only a select cadre of law school graduates — the ability to interpret words that aren’t there.
In a final flurry of irrationality, Rappaport strikes down the state’s school finance law and orders a new system of funding, but she concludes the order by allowing this “inadequate,” “irrational,” “unconscionable” finance system to continue, pending further action by the Supreme Court.
In announcing the state’s appeal, Gov. Hickenlooper observed: “There are more appropriate venues (than a courtroom) for a vigorous and informed public debate about the state’s spending priorities.”
Yes, and, more rational, too.
Mark Hillman served as Colorado treasurer and senate majority leader. He is now a Centennial Institute Fellow and Colorado's Republican National Committeeman. To read more or comment, go to www.MarkHillman.com.
('76 Editor) I believe that Colorado taxpayers and the federal government are spending enough, if not too much, on education. I believe schooling would be more effective if competition, choice, market forces, and parental control were more prevalent. And I believe we would be a freer and better-educated society if at some point, decades from now, government no longer operated or subsidized schools in any way. Since the 1990s, in fact, I have been signatory on a vision statement to that effect.
I was summoned to a Colorado court to testify on the first of those three beliefs, and on nothing else, in connection with the Lobato lawsuit alleging that state aid to local school districts is unconstitutionally low. While on the stand, I was asked about the Separation of School and State vision statement, and confirmed my adherence to it. But I said not a word to suggest it has anything to do with who is right or wrong in the Lobato case - because it doesn't.
For reasons known only to herself, however, the judge in this case, Sheila Rappaport, thundered against my "extreme" views in her Dec. 9 opinion holding for the plaintiffs. At the bottom of this post is an excerpt from the Dec. 11 Denver Post story, giving the details. After musing on this bizarre outburst from the bench, I would observe the following:
1- Intellectually, Judge Rappaport missed the whole point of my testimony, which was to affirm the current school finance act, not to advocate change as any kind.
2- Judicially, the judge dropped her impartiality in ranting at me over a personal opinion unrelated to the case before her.
3- And historically, the judge seems oblivious to the massive evidence that our country's 1800s ideal of tax-supported common schools, woven into the local community and open to all, has worked ever less well as it became ever more politicized, centralized, bureaucratized, and unionized. While it may be disputable, as of 2011, to question the article of faith that higher spending is all we need to reach educational nirvana, to do so is hardly "extreme" as Sheila Rappaport indignantly alleges.
How, I wonder, did she become so enraged at me on no provocation whatsoever? You almost have to feel sorry for someone entrusted with the vast power of this judge on this case, who manages to be so wrong, so far off base, indeed so far off the reservation - intellectually, judicially, and historically - as Ms. Rappaport has shown herself to be with this gratuitous slam at someone who came before her to testify calmly, reasonably, mildly, and altogether on point.
Here is an excerpt from the 12/11/11 Denver Post story:
Denver judge's ruling on school funding levels blisters state's witnesses
In declaring Colorado's school finance system "significantly underfunded," Denver District Judge Sheila Rappaport rejected virtually every argument presented by the state's star witnesses in a five-week trial this year over school funding levels. Rappaport's ruling, issued Friday, blasted the state's level of school funding as "unconscionable" and not meeting the requirement in the Education Clause of the Colorado Constitution of a "thorough and uniform" system of public education.
Rappaport saved her fiercest criticism for former state Senate president John Andrews, a Centennial Republican, who testified for the state, calling his views on education "extreme."
"Sen. Andrews' vision for the future is a separation of schools and state similar to the separation of church and state in our nation," the judge said. "He has signed a pledge calling for the end of government involvement in education. He reveres the educational system we had in this country in the 1700s because there were few government-operated schools. He fails to mention that our schools did not educate whole segments of the population, including women and people of color, at that time."
Former Colorado Supreme Court Justice Jean Dubofsky, in her Oct. 24 Denver Post piece “Keep integrity of courts,” disappointingly banged on the political drum to draw attention away from the voters’ interest in finding out how three Colorado Supreme Court justices, who each want 10 more years on the bench, have been deciding constitutional cases. The exaggerated commentary demonized Clear the Bench Colorado (“CTBC”) for taking to task three justices whose performance has been substandard. Contrary to the political charges, CTBC is actually concerned with the three justices’ takeover of the Colorado Constitution. The real issue that “Keep integrity” failed to mention is this: Are Colorado Supreme Court justices answerable to the voters of Colorado for failing to follow Colorado’s Constitution in cases that affect the lives of every citizen, or not? While our merit selection and performance evaluation system is the right system for Colorado, experience has revealed a material weakness. Our lower courts are answerable for their decisions to the higher courts, but our Supreme Court has not been held accountable for its unrestrained constitutional law decisions. Increasingly, decisions are handed down that are contrary to the plain language and obvious intent of Colorado’s Constitution. The result has been a progressive judicial takeover of the Colorado Constitution.
Despite the growing problem, the “Keep integrity” piece peddles the Blue Book state voter guide as the place to go for judicial recommendations. The Blue Book recommendations in favor of the three justices are the product of the entity entrusted with evaluating supreme court performance; namely, the State Commission on Judicial Performance (“the Commission”) of which I was a member in 2005 and 2006. (To my knowledge, there has never been a recommendation against retaining a Colorado Supreme Court justice!) When one compares the Commission’s perfunctory recommendations to CTBC’s civics project, one sees that CTBC is intent on improving our judicial system at the top. CTBC brings the most relevant job performance information to voters so they will have a basis upon which to judge the 3 justices for themselves.
Instead of being diverted by the red herring of politics, we need to be mindful of the real issue. Should voters in Colorado have anything to say about how their supreme court justices handle the Constitution? Of course they should: the Constitution belongs to the people.
As the confirmation hearings for nominee Elena Kagan begin this week, we again return to the question of how Supreme Court justices should interpret the Constitution. Central to this inquiry is the approach that justices take towards both the text and the fundamental principles which undergird our Constitution. There has been a long-running debate concerning this among varying judicial philosophies, one that in many ways mirrors current tensions among the Christian church. The recent phenomenon of the emergent church movement provides us with a striking similarity to the approach taken by many of our nation’s modern/activist judges.
A very attractive approach in our modern culture comes to the following conclusion: When I no longer like the orthodoxy, I’m in favor of changing it. The temptation to question and challenge orthodoxy is indeed strong; in fact, our nature drives us to it. The history of religion finds numerous cases when those who were dissatisfied sought to overturn longstanding truths in favor of new ideas that “better suited” the circumstances of the day. Typically, what happens is that when we find orthodoxy no longer convenient, we seek to replace it by crafting something new, rather than align ourselves with it. More often, this is done through clever reinterpretations of the original.
In recent years, such a group has been increasing in their influence among the church. This group, commonly referred as the “emergent church” has intentionally remained elusive in declaring their doctrine. Yet among many in the movement, there are significant challenges to the fundamental orthodoxy of Christianity: through faith in Christ alone is the sole means of salvation. These revisionists are denying the doctrine of substitutionary atonement, the reality of Hell, and the very nature of the Gospel. The emergent movement comes out of frustration that the 21st Century church doesn’t fit well within a 21st Century mindset. For instance, it is indeed uncomfortable to think about eternal damnation in Hell. What to do? Remove this threat from religion. Or, it does indeed seem arrogant that Christ is the sole route to salvation. What to do? Open it up to other alternatives. Many in the emergent church movement are doing just these things.
Of course, this tendency to contradict the orthodoxy is not limited to religion. There are great similarities in the causes, methods, and desired ends of the “emergent” movement toward a “living Constitution.”
Justice William Brennan, in a 1985 speech at the Georgetown University School of Law, laid out his view of constitutional interpretation. “Like every text worth reading, it is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. It majestic generalities and ennobling pronouncements are both luminous and obscure. This ambiguity of course calls forth interpretation, the interaction of reader and text.”
Brennan concluded that the text of the Constitution was less important than his own desired ends of “justice.” When discussing the issue of capital punishment, Brennan, a longtime opponent, concluded that the Constitution was incompatible with state-sanctioned executions. Where did he find this? He certainly could not have concluded that capital punishment conflicted with the 8th Amendment concerning cruel and unusual punishment, as the authors of the amendment certainly had no such opinion. Looking to other portions of the Constitution, there is clear evidence that execution is permissible. Both the 5th and 14th Amendments permit its usage. The requirement that no person “be deprived of life, liberty, or property, without due process of law” presupposes that when a person has been guaranteed due process, then capital punishment may indeed be used.
Brennan is forced to ignore both the mind of the authors and the clear meaning of the text. Simply to state that the text is ambiguous, Brennan seeks to give himself permission to interpret it however he sees fit.
What Brennan challenged is the very concept of rule of law and the principles of limited government. He does this through the activist and “living constitution” approach to judicial review. The Supreme Court Justice, under our model of constitutionalism, is not entitled to “make the law what they want it to be.” Rather, they are to apply the law as it was intended. It is fine that Justice Brennan disliked the usage of capital punishment. It is absurd to conclude that it violates the text and/or the fundamental precepts of the Constitution.
What we need are justices who recognize the truth and value of the orthodoxy and who have a commitment to uphold it.
('76 Contributor) The many ways in which Supreme Court Justice John Paul Stevens has weakened our Constitution were outlined in David Harsanyi's recent Denver Post column. However, Harsanyi left out the "penumbra," which not only softened the Constitution, but also killed many people, which is far worse than any examples the column detailed.
In the fateful Roe v. Wade decision of 1973, Justice Stevens found a "penumbra" or a shadow in the 14th Amendment and constructed an "abortion right" that has killed 50,000,000 babies in the womb. President Obama said that Justice Steven "applied the Constitution and the laws of the land with fidelity and restraint."
If that is restraint, how many more babies will be killed with the next appointee?