Wednesday, October 27, 2010

A Constitional Crisis

In today's American Thinker, T. L. Davis has an excellent article entitled ObamaCare and the Constitutional Crisis. It gives a good overview explanation of the two Constitutional doctrines:
The debate is also a stage-setting for the greater issues of how to read the Constitution. There are two schools of thought on the issue of constitutionality: the Literalist school and the Case Law school. Each one approaches the document from a different point of view. The Literalist reads the words and meanings as they are presented without nuance, whereas the Case Law adherent reads the Constitution as seen through the filters of case law and precedent. The words they see are not the words themselves, but placeholders for an extended file of subsequent cases and rulings.
I am, of course, one of those who is puzzled by some of the decisions rendered by our Supremes. I am disturbed by those who think that the Court is the final arbiter of what is and is not Constitutional. What that means is that 9 black robed men and women, not We the People, are actually governing this nation.  The idea that my God given and unalienable right to own and carry a weapon, a gun, is somehow dependent on the writings of these 9 men and women is a hideous idea.  The notion that I may exercise my religion only at the sufference of the Court is outrageous.

I have written about this before here. In that post, I made the statement that case law and precedent can not ultimately conflict with the law itself. After all, if it did, then judges would be making law themselves. But that is not a judge's job.  Legislators make law, judges interpret the law in specific cases.  Judges can not interpret the law to mean something the writers of the law never intended.  It is time to reign in activist judges, and Supreme Court Justices.
An unintended consequence of the Supreme Court ruling, should they rule in favor of the Case Law adherent, is that the Literalist majority of Americans might come to feel as if they are no longer free, as if they are unable to understand the rules under which they have given their consent to be governed, as if the conclusion of a long-felt oppression is complete. At this point, social upheaval is not only possible, but likely.


  1. "At this point, social upheaval is not only possible, but likely."

    I fear this is true. It is not desirable, but is probably inescapable. When the "great unwashed masses" find out that the gravy train isn't coming, there will be riots. Those who have been preparing for the worst may be backed into corners, and will shoot back to defend themselves. The entire nation could devolve into a literal battleground.

    Note the emphasis on "could"; I still believe that God isn't through with us yet, and He didn't create this Constitutional republic so as to sit back and watch it die.