Tag Archives: Founding Fathers

The founders got it right with the judiciary

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Just how brilliant were the nation’s founders in establishing an “independent judiciary”?

I’ll offer you an example: Take a look at what’s happening in Kansas, where the legislature and the governor are seeking the power to impeach judges who rule incorrectly … in their view.

I want to follow up on an earlier blog post to make this observation about the relationship between the courts and the other arms of government.

The Kansas Supreme Court has become the target of efforts to impeach and remove judges. It seems the jurists have ruled against the wishes of legislators and Gov. Sam Brownback. The high court justices are appointed and then they stand for retention; if voters like the job they’re doing, they retain them; if they don’t, they remove them.

That’s not as bad a system as we have in Texas, where judges are elected on partisan ballots. Judges become politicians. They have to raise money and actually campaign for office. These days in Texas, if you’re a Democrat, you have virtually no chance of winning a statewide judgeship. It used to be the reverse, when Democrats were the kings and queens of the heap.

Back to the founders.

They set up a system that provided essentially for lifetime appointments to the federal judiciary. The Supreme Court is the prize job for any jurist in the land. You become independent and free of political pressure … at least that’s how the founders envisioned it.

Justices then are able to interpret the constitutionality of federal law according to how they view it. The good ones are able to dissect laws impartially and make judgments based on their knowledge of what the Constitution allows.

Too often, though, Supreme Court justices apply rigid standards. Conservatives such as the late Antonin Scalia and Clarence Thomas view themselves as “strict constructionists” who rely on what they believe were the founders’ original intent. Liberals such as the late Thurgood Marshall took another view. Justice Marshall prejudged every capital punishment appeal before ever hearing the case and he would always vote to grant the appeal. Why? He didn’t believe in capital punishment.

There have been many instances over the course of our history when justices become something other than what the presidents who appointed them thought they would be. President Eisenhower appointed Chief Justice Earl Warren and Associate Justice William Brennan, both of whom went on to become liberal giants of the court. President Nixon selected Justice Harry Blackmun, who later wrote the landmark Roe v. Wade ruling that legalized abortion. President Kennedy appointed Justice Byron White, who then became a swing vote on the court who often sided with conservatives. President Ford’s pick, Justice John Paul Stevens, often sided with the court’s liberals.

I’ve just offered a few of many examples. You get the idea.

The independence of the federal judiciary, though, is a standard that states ought to follow. Otherwise, we are left with creating a highly political court system that becomes victimized — as the Kansas courts are becoming — to the whims of politicians who have agendas that have little to do with following the law.

The founding fathers didn’t create the “perfect Union” when they crafted the Constitution. They left out a lot of rights for many Americans, chief among them being women and African-Americans.

When it came to creating a federal judicial system that is intended to be unencumbered by politics, well, they got that one right.

U.S. senators who have to ratify these appointments often don’t understand that intent. In a broad sense, though, the federal judicial system works pretty much as it was designed.

Take heed, state politicians.

 

Nation founded and built by refugees wants what?

immigrants

I feel like the Linda Blair head-spinning character in “The Exorcist” while I listen to some of these arguments that we need to ban refugees from entering the United States of America.

Why?

Well, consider that our very founding occurred because Europeans sailed across the Atlantic Ocean to flee religious persecution. They came here, set up villages and encampments and eventually founded a secular government that expressly forbids the creation of a state-sponsored religion.

Our nation then grew. We received a statue in the late 1880s, erected it in New York harbor and welcomed more refugees to our land.

Throughout the centuries, refugees and other immigrants helped build the greatest country in world history. My four grandparents were among those who came here, not as refugees, but as immigrants looking to create better lives for themselves.

Now the discussion has devolved into whether we should accept refugees who are fleeing civil war in the Middle East. Many of us fear that those refugees will include terrorists burning with the desire to harm Americans.

I share the concern. Really, I do. However, I refuse to believe we should act fearfully. Yes, we need to be vigilant to protect our nation against those who seek to do harm. Then again, we’ve always had that concern. The United States — or any nation with an open-door policy toward immigrants — always has been vulnerable to attack from those posing as mere opportunity-seekers.

But are we a nation founded and built by immigrants that is now going to slam the door shut on those who still believe this is the Land of Opportunity?

I hope this is not what we’re becoming.

 

So, just who really needs an assault rifle?

Some of the weapons collected in Wednesday's Los Angeles Gun Buyback event are showcased Thursday, Dec. 27, 2012 during a news conference at the LAPD headquarters in Los Angeles. Mayor Antonio Villaraigosa's office says the weapons collected Wednesday included 901 handguns, 698 rifles, 363 shotguns and 75 assault weapons. The buyback is usually held in May but was moved up in response to the Dec. 14 massacre of students and teachers at Sandy Hook Elementary School in Newtown, Conn. (AP Photo/Damian Dovarganes)

Let’s talk about guns for a moment or two.

A Rhode Island congressman, Democrat David Cicilline, has pitched the Assault Weapons Ban of 2015 to his colleagues in the House of Representatives.

The ban has drawn the support of a number of Democrats. However, Republicans control Capitol Hill, which likely means the assault weapon ban won’t see the light of day.

Cicilline issued a statement: “Assault weapons are designed for the sole purpose of killing as many people as quickly as possible,” he told The Hill newspaper. “We need to do everything we can to reduce the toll of gun violence by keeping these weapons out of our communities.”

Here’s what I believe will happen to the bill, although I likely am wrong about some of the nitty-gritty details of the debate.

They’re going to tell us that the Second Amendment says categorically that the right to “keep and bear arms shall not be infringed.” They’ll look past the first part of the amendment that talks about a “well-regulated Militia.” I’m not going to argue the point here, given that I believe the amendment was written poorly in the first place; it seems to contain a non sequitur … but that perhaps is just me.

The congressman’s bill would allow those who currently possess an assault weapon to keep it, but it could become difficult for someone to sell it.

So, does this proposed legislation water down the Second Amendment to an unacceptable level? I do not believe it does.

Then again, I’m not in Congress and I don’t have to listen to the wishes of constituents who think otherwise. In fact, an ABC News poll says Americans now oppose a ban on assault weapons, believing that authorities are unable to stop “lone wolf” attacks by someone toting an assault weapon.

Despite my concern about the verbiage contained in the Second Amendment, I accept the notion that gun ownership is a protected right. I own a couple of weapons. They’re hidden.

The notion I cannot accept is that assault weapons are part of the package envisioned by the Founders who wrote the Second Amendment — in the late 18th century.

Nice try, Rep. Cicilline.

Always a political back story

refugees

I am a strong believer in what the Founding Fathers intended by creating an independent federal judiciary.

They gave the president the authority to nominate federal judges for lifetime jobs, pending approval by the U.S. Senate. The intent, as I’ve always understood it, was to de-politicize the judicial branch of government.

It works.

Judge blocks order

Then again, politics always seems to be part of the subplot of every federal judicial decision.

U.S. District Judge David Godbey, for example, today struck down Texas Attorney General Ken Paxton’s ban on Syrian refugees coming to Texas. Paxton cited security concerns in asking for the temporary restraining order. Godbey ruled within hours of the request that Paxton had failed to demonstrate that the refugees posed any kind of threat.

Godbey wrote, according to the Texas Tribune: “The Court finds that the evidence before it is largely speculative hearsay,” the judge wrote. “The [state] has failed to show by competent evidence that any terrorists actually have infiltrated the refugee program, much less that these particular refugees are terrorists intent on causing harm.”

So, it’s fair to ask: Is this judge sitting on the federal bench because a liberal Democratic president, Barack Obama, appointed him? No. He was selected in 2003 by Republican President George W. Bush to serve the Northern District of Texas. Paxton, let’s point out, is a Republican as well.

Does it really matter, then, whether a judge gets picked by a Democrat or a Republican? It shouldn’t. Judges take an oath to uphold the Constitution without regard to political favor. They do, remember, have a lifetime job.

But the politics of this particular issue — the refugee crisis and the political debate swirling all over it — causes one to look carefully at who’s making these decisions.

Judge Godbey appears to have put the law above his political leanings.

We are a nation of refugees

founders

The debate over how — or whether — to welcome refugees to our land is continuing at full throttle.

It is dismaying to hear talk from presidential candidates that we should slam the door shut on Syrians — or Muslims — out of fear that some of them might be terrorists intent on harming Americans.

President Obama has declared several times, “That’s not who we are.”

Well, who are we?

By my reckoning, we are a nation founded and built by refugees.

You’ve learned about these individuals. They sailed to the New World to flee religious and political oppression. They came here in search of a new life. They encountered the indigenous population here and were met with mixed feelings by their new “hosts.”

The refugees persevered throughout most of the 17th century and into the 18th century. They rebelled eventually against the empire from which they had fled. They launched a revolution. The fighting ended in 1781 and a nation was created.

Those refugees then crafted a government built on a document that specified certain things. One of them would be that they would apply no religious test for those seeking political office.

However, some politicians today actually have said in the current climate that people of a certain religion are not “qualified” to seek public office. That’s not who we are, either.

Do we intend to live in fear? Are we doing to forsake the very principles on which those first refugees founded this great nation?

How about we take a break, look inward at just who we are as a people — as a nation?

How might those first refugees think of what has happened to their descendants and their reaction to world events?

 

Religion takes center stage

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Bobby Jindal says Donald Trump isn’t really a Christian.

Ben Carson said — initially, at least — that a Muslim isn’t fit to be president.

Mike Huckabee says Barack Obama is trying to “criminalize” Christianity and that the president is a “pretend” Christian.

Can we stop — please! — with the religion rhetoric?

Jindal was just the latest to ridicule another Republican presidential candidate’s statement of faith. Trump had spoken to the Values Voter Summit and proclaimed his deep Christian faith. Jindal followed him and said Trump has never read the Bible and that he believes only in himself.

Religion has no place here

I kind of get where Jindal, the Louisiana governor, is going with the Trump jabs. Trump opened himself up to the ridicule by proclaiming to a group of zealous conservatives that he’s one of them. Jindal, I suppose, has the right to challenge one of his rivals’ assertions in that regard.

But this continual back and forth regarding candidates’ faith is getting tiresome and, frankly, it misses a critical point about electing the next president of the United States.

The point is that the president is head of a secular state and government. We can argue until hell freezes over about what the founding fathers intended when they wrote the Constitution. But the finished document is as secular as it can possibly be.

The First Amendment spells it out. Congress shall make no law that establishes a state religion, it says. Isn’t that enough evidence of what the founders intended when they established the Bill of Rights in the nation’s government document?

So, let’s cut the talk about who’s a real Christian?

It does not matter.

 

 

No takeover is imminent

Jade Helm 15 is about to commence in Texas.

Despite what some nut jobs have put out there, the U.S. military is not about to take over the state and hand it over to international spies.

Do not listen to the goofballs who actually persuaded Gov. Greg Abbott to order the Texas State Guard to “monitor” the activities of the Army, Navy and Air Force special forces who’ll be conducting the exercises.

http://dallasmorningviewsblog.dallasnews.com/2015/07/jade-helm-15-no-that-helicopter-is-not-coming-for-you.html/

It’s going to be all right.

The exercise was announced some months back and the Internet then jumped to life with conspiracy theories about what it all meant to some individuals and groups. As the Dallas Morning News blogger Jim Mitchell notes, one of the nuttier notions involves the Alamo: the United Nations declared the old mission a Unesco World Heritage Site, which apparently sealed it for some. Anything that involves the U.N. has got to be bad news for Texas, they feared.

The founding fathers didn’t get it perfect when they drafted and then ratified the U.S. Constitution. One thing they got right, though, was to build in a checks-and-balances system that’s designed to prevent one branch of government from getting too powerful.

President Obama knows all of this. So does the Pentagon brass. Even the federal judiciary, which has come under fire lately because of some controversial Supreme Court rulings, understands it. Congress knows its place, too.

Let the troops come to Texas to conduct their exercises.

It’s going to be OK. Honest.

 

Change the federal judicial system? Please, no

What is it with some American politicians?

A court ruling or two doesn’t go their way and they want to toss aside one of the basic tenets of our federal government? They want to elect federal judges, make them stand for “retention” if they make a decision that upsets some of us?

That’s the view of a leading so-called “conservative” U.S. senator who’s also running for the Republican presidential nomination in 2016. Take it away, Ted Cruz of Texas.

http://www.politico.com/story/2015/07/ted-cruz-chris-matthews-supreme-court-119891.html

Cruz jousted this week with MSBNC’s Chris Matthews over the setup of the federal judiciary. Cruz doesn’t like the two recent Supreme Court rulings that (a) upheld the Affordable Care Act and (b) legalized gay marriage in the United States.

The junior senator from Texas now thinks Supreme Court justices should stand for retention to enable voters a chance to decide if they want them to keep their jobs.

Matthews, not surprisingly, went semi-ballistic — which is part of his shtick. He brought up the Bush v. Gore decision that settled the 2000 presidential election. The Supreme Court voted 5-4 to stop the Florida recount. Texas Gov. George W. Bush was leading by 537 votes at that moment over Vice President Al Gore. Gov. Bush was awarded Florida’s electoral votes, which were enough to elect him president of the United States by a single electoral vote.

The five Republican-appointed justices’ overruled the four dissents cast by the Democratic-appointed justices. Politics? Gosh, do you think?

Conservatives hailed that decision. And why not? It was all done according to precisely the manner allowed by the U.S. Constitution. Some of us might not have liked the outcome, but that’s how it goes. The justices made the call.

Cruz didn’t object then, Matthews reminded him.

The nation’s founders set up a system in which the federal judiciary is intended to be free of political pressure. The president appoints judges and Supreme Court justices, who then are subject to approval by the Senate. They get lifetime jobs and, therefore, are able to rule according to how they interpret the Constitution.

This idea that we should now subject justices to the political will of the people is simply not in keeping with what the founders intended when they wrote the Constitution.

Political conservatives, such as Sen. Cruz, keep harping on “original intent.” Well, the founders’ “original intent” was to separate the judicial branch of government from the political tug-of-war that exists in the legislative and executive branches.

Cruz said he is “reluctant to call for elections,” and said it “makes him sad.” He added that he has made that call because “a majority of the justices are not honoring their judicial oaths.”

Yes they are, senator.

Let’s leave the judicial system alone.

A ‘Christian nation’? Never have been one

I heard it said over the weekend that “we aren’t a Christian nation … anymore.”

It took me aback.

We’ve been hearing a lot of that of late, particularly in the wake of the Supreme Court’s ruling that state bans on gay marriage violated the U.S. Constitution’s 14th Amendment and the “equal protection clause” contained within it. Therefore, gay marriage should be made legal in all the states, the court said.

Back to the point: Are we a Christian nation? Have we ever been one?

No and no.

I keep reading the U.S. Constitution and so help me, I cannot find the word “Christian” anywhere in it. Some of my friends on the right keep asserting that if the Constitution doesn’t say something specifically, then it’s not germane to a constitutional discussion. A former colleague of mine keeps asserting, for instance, that the Constitution doesn’t even mention “marriage,” but it does mention “the right to keep and bear arms.” That’s his way of affirming that the Second Amendment’s literal verbiage carries weight over the court’s broader interpretation of what’s allowed and what’s prohibited.

I am quite aware of the argument that the founders were driven by religious principles. I remain undecided, though, on the issue of whether they were devout believers in Jesus Christ, as some have asserted, or whether they were deists who believed in a more ecumenical God, or supreme being or “higher power.”

I also am quite aware that after considerable debate at the constitutional convention that produced our governing framework that they produced a document that is devoid of religious references … except for one mention. It says — in Article VI, Paragraph 3 — that there shall be “no religious test” for anyone seeking public office.

The founders’ immediate forebears fled Europe to escape religious persecution and to be free of state-mandated religion. That’s why they wrote a Constitution that spells out quite clearly that this would be a secular nation, governed by laws written by fallible human beings.

A Christian nation? Well, we’re a nation comprising citizens who are mostly Christian. They remain free to worship as they please. So are non-Christians, just as it’s always been since the beginning of this great republic.

God bless America.

Three cheers for appointed federal judges

supreme court

Take a good look at this picture. It shows the nine men and women who have upheld the Affordable Care Act’s federal subsidy provision.

The U.S. Supreme Court has protected health insurance for an estimated 6.5 million Americans.

But to hear the criticism from the right in this country, you would think these individuals have just destroyed the U.S. Constitution they took an oath to uphold and to interpret fairly and without bias.

Thank goodness for the constitutional provision that allows these individuals to hold lifetime jobs, free of the kind of political pressure that forces elected judges at times to tilt in favor of interests whose job is to put heat on politicians.

The 6-3 ruling crossed ideological lines. Two conservatives — Chief Justice John Roberts and Associated Justice Anthony Kennedy — ruled with the majority. The three dissenters — Justices Clarence Thomas, Antonin Scalia and Samuel Alito — held firm in their belief that the ACA violates the Constitution.

Six justices voted for the ACA; three of them voted against it.

Majority rule wins, yes?

Republican presidential candidates went ballistic. Mike Huckabee called the court majority “judicial tyrants.” Ted Cruz threw the “lawless” adjective out there — again.

The founders got it right when they made the federal judiciary an unelected branch of government. They intended for federal judges to be free of the pressure that can overwhelm elected politicians. Presidents feel it. Legislators feel it. They are elected to represent us all. We might not like all the decisions they make, but we have recourse: we can vote them out when the next election rolls around.

Not so with federal judges. They are appointed to lifetime jobs. Yes, they are appointed by politicians with particular biases and philosophies. The judges then are subjected to sometimes grueling hearings before the Senate, which has the authority to approve or reject their appointments.

Once they take their seat on the bench, though, all bets are off.

Occasionally, these appointees evolve into judges that their benefactors — the presidents who appoint them — might not like.

That’s part of the process the founders established.

And the irony of all the outrage being expressed by those who oppose the Supremes’ support of the ACA is that many of those on the right proclaim themselves to be “strict constructionists” of the Constitution. The way I read the Constitution, it states with crystal clarity that federal judges serve for as long as they want — or are able — to do the job.