Posts Tagged ‘SCOTUS’

Robert Bork argues that competition law is fun...

In 1987, during his Supreme Court Justice nomination hearings, Judge Robert Bork said (starting at 03:40):

I cite to you the Legal Tender Cases. Scholarship suggests — these are extreme examples, admittedly — scholarship suggests that the Framers intended to prohibit paper money. Any judge who today thought he would go back to the original intent, really ought to be accompanied by a guardian rather than be sitting on a bench.

Ironically, he was deemed to be too conservative, and a right-wing judicial activist by his top detractors like Senator Joe Biden and Senator Ted Kennedy.

This demonstrates that even so-called originalist and conservative judges don’t intend to uphold their oath of office when it’s politically difficult to do so, and why change needs to come externally.

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My email to Dr. Stan Monteith of Radio Liberty about a controversial church-state separation matter, with added links:

I listened to your show last night where you criticized the U.S. Supreme Court for not hearing an appeal of the lower court decision ordering Alabama State Supreme Court Chief Justice Roy Moore to remove the Ten Commandments display he had put up.

While the Founding Fathers intended the Bill of Rights to apply to the federal government and not the States, and while the First Amendment specifically refers to Congress and not the state legislatures, and while some states had an official religion at the time of the adoption of the Bill of Rights;

As you know, the U.S. Supreme Court has since incorporated parts of the Bill of Rights to apply to the States, including the First Amendment.

While the U.S. Supreme Court has an engraving of Moses with the Ten Commandments in its main chamber, that’s in the context of a series of lawgivers, and the first judge who heard the case against Moore said it would have been a very different matter if Moore’s Ten Commandments display was in a similar context.

I don’t think it was constitutional for the U.S. Supreme Court to incorporate the First Amendment to apply to the States, since, unlike the others, it explicitly mentions Congress. However, given the current state of jurisprudence, I think that their decision not to hear the case was a reflection that the lower federal courts had appropriate jurisdiction and a valid argument for their decision, though they didn’t necessarily endorse it.

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My email to Pastor David Whitney of the Institute on the Constitution after his June 9, 2010 appearance on Radio Liberty with Dr. Stan Monteith:

Pastor Whitney,

I heard your very educational presentation of the Fifth Amendment on today’s show with Dr. Stan.

You said that you read an opinion by Justice Scalia, who you say has written many good opinions in keeping with the Constitution, and that in it, he argued that Grand Juries are independent of the three branches of government.

You later said that those Justices who found in favor of the city of New London in Kelo v. New London (2005), finding that private property could be taken for non-public use, should be impeached for violating their oath to uphold the Constitution, specifically the Fifth Amendment in this case. I agree wholeheartedly with you on that.

Now, consider the case of Hamdan v. Rumsfeld (2006), where Justice Scalia upheld President Bush’s denial of the writ of habeas corpus to Mr. Hamdan.

Article I Section 9 of the Constitution includes:

“The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

Given that:
1) The Constitution grants powers to, and limits powers of, the federal and state governments;
2) The privilege in question makes no mention of applying only to U.S. citizens, nor does the Bill of Rights;
3) There was no rebellion or invasion at the time;
4) Congress didn’t suspend the writ of habeas corpus through that provision;
5) The President takes a constitutional oath to “preserve, protect and defend the Constitution of the United States”;
6) Justice Scalia is a self-avowed “originalist;”

Do you agree that Justice Scalia should be impeached for his decision in that case, as you argued for those Justices who found in favor of the city of New London?


Jason Erb

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