It’s the Law. Or is it?

Earlier this week, team Trump got a bit of positive news from the halls of the Supreme Court when, in a 5-4 decision, SCOTUS ruled that yes, Virginia, the government is allowed to consider the welfare recipient status of a potential legal immigrant when deciding whether or not to allow that person access to the country.

It certainly is a good thing that, at least for now, that this is the established precedent of the land. While my personal position is that we ought to admit no immigrants of any kind, legal or illegal, in a country where the practice exists, it is just good governance and common sense that those who seek to live on the dole are not welcomed. If an immigrant needs taxpayer assistance in order to maintain himself in the United States, that immigrant offers nothing of value and should be roundly and summarily rejected. Back to your shithole, with you.

So, good on the court for doing the right thing for once. And yet…Five to Four? It speaks to the capricious nature of the kritarchy (rule by judges for those playing along at home) that what, in a civilized society, ought to be a 9-0 slam dunk is divided strictly along ideological lines, with the conservatives obeying the Constitution and the liberals inventing a justification for their outcome based ruling out of whole cloth, as they are wont to do. Furthermore, the fact that the Supreme Court has to concern itself with such a mundane piece of business further underscores that the United States is no longer a nation of laws, it is a nation of judges.

I seem to recall another society where the law as it was written was reviewed endlessly and in arbitrary ways which benefited the powers that be. Ways that allowed the Temple to be plagued with money changers among myriad other crimes against God. Admittedly, the offense was more egregious in this other case, given that the law in question was the divinely inspired Scripture and not a contemptible document such as the US Constitution, but the point remains the same. The written law in both cases is plain as day, but the men placed in charge of interpreting it (as though something clearly written needs interpretation, but my sola scriptura is showing again), did so in ways which benefited their own power and wealth. The Pharisees and the U.S. Courts have a lot in common. And no, I don’t just mean ethnically. Besides, that would let the Catholics off the hook, and they have been willing and eager participants in the progressive push through the Courts.

The whole reason this case came before the court was due to a federal appellate judge overstepping his bounds and issuing a nationwide injunction against Trump’s planned move to block would-be welfare recipients from immigrating within days of the October announcement. I confess that I did not bother reading the dissent, but I can imagine how it goes. Blah blah blah, this is somehow an equal protection violation because the law is treating poor, uneducated brown people differently than more wealthy/intelligent applicants. Never mind that most of those people also are not white, as immigration from Europe makes up a minute part of the total. And never mind that people who are not citizens of the United States and are not residing therein are not subject to the jurisdiction of the Constitution. Commies never let a few facts get in the way of a good yarn.

In their concurring opinions (agreeing with the outcome but with different justifications), Justices Gorsuch and Thomas attempted to strike a further blow in suggesting that nationwide injunctions issued by a single judge to block actions of the executive or legislative branches of government is not how the process is supposed to work. At most, this could serve as a temporary order within that judge’s district until it is fully deliberated upon, but even this seems excessive. As a concurring opinion, these comments are not the law of the land, but even if they were, it still gives too much leeway to federal judges. Why? Because the simple fact is that judicial review ought never to have existed in the first place.

Rewind a bit to the earliest days of the United States when, in fact, the country was still a Republic. Yankee leftist John Adams and his merry band of totalitarians in the Federalist party passed a law known as the Sedition Act which prohibited members of the press from criticizing agents of the government in print. At that point in time, there existed a very real crisis in how to respond to this governmental overstep, as freedom of the press and freedom of speech were both being infringed upon by the federals. Do we ignore the law? What exactly is the remedy here?

The response of Thomas Jefferson and James Madison was to pen the Kentucky and Virginia Resolutions, respectively, which first laid out the doctrine of nullification. In essence, the argument was that if the central government does something which is blatantly illegal, the state governments are under no compunction, as voluntary members of the union, to follow such direction.

This might seem strange to those of us in modern times, when we are taught from the youngest age that the Supreme Court and its powers of review are sacrosanct and that those nine people are the ultimate arbiters of truth, justice, and the American way. But if you actually read the Constitution, there is no mention of judicial review. It says that there shall be a Supreme Court and any lower courts such as Congress deems necessary to administer the laws and lays out what jurisdictional powers that Supreme Court shall have. It does not suggest that the Court has final say over actions of the legislature or the president.

The Supreme Court was such a low status job in the days before Marbury vs Madison that John Jay, co-author of the Constitution and first Chief Justice, opted to return to his home state of New York to serve as Governor rather than stay on the Court, a decision which would be unfathomable in this day and age.

The reason that Jefferson and Madison acted as they did in the closing months of the 18^th century was precisely because the Constitution offered no remedy when the central government overstepped its power. Given the latter’s role in the creation of that document, the Virginia Resolution speak volumes. In the eyes of the chief author of the Constitution, it was incumbent upon the states to reject overreach. The idea that the Supreme Court would step in and play arbiter never crossed Madison’s mind. John Marshall changed all that.

I shan’t bore you with the history lesson of the particulars of Marbury vs Madison (1803), because it is an unremarkable case with a truly remarkable outcome. Therein, Marshall invented the concept of judicial review from whole cloth. Thus, the national government gained for itself the power to rubber stamp its own actions with a few strokes of a pen from an unelected opposition politician, whose Federalist party had been reduced to rump status after the Jeffersonian Revolution of 1800.

Prima Facie it might not seem like such a bad idea, right? Shouldn’t there be a body whose purpose is to ensure that the actions of the government are above board? My answer in the negative goes back to Federalist #51, which I shall quote presently.

“But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

Publius

To put it bluntly, this internal control on government, which was invented not by the author of the document nor by the legislature, but by a judge seeking to carve out extra power for himself, completely unravels everything the Constitution set out to accomplish. Judicial review only works if men were governed by angels.

To be fair, the worst Virginian of the founding era (aka Marshall) had a much more limited view on what his powers of review were versus what the Supreme Court enjoys today. He outlines this in Barron v Baltimore (1833), one of the final cases that he ruled on. In this case, which I shall give a brief overview of because it is germane to my thesis, Barron owned a slip in Baltimore’s harbour. As trans-Atlantic shipping grew, the city of Baltimore had engaged in a number of improvements designed to increase the draft space, allowing for bigger and more ships. As a result, Barron’s slip was rendered useless due to mineral deposits. He sued on 5^th Amendment grounds, claiming that his property (or rather, its value) had been taken from him without due process.

In his decision, Marshall denied the appeal, stating simply that if the central government had done such a thing, he would have found for Barron, but that he had no authority to act on state matters. This would be the precedent until 1917, when the odious and overrated Oliver Wendell Holmes further extended the power of the central government over the states in his creation of the doctrine of selective incorporation. The Imperial Court needed a new cudgel with which to beat the wayward provinces. How better to achieve that goal than under the auspices of demanding that the states adhere to the (ever evolving progressive interpretation of the) Bill of Rights?

I could and should write a book about this topic, so I’ll try to be brief here. As stated above, the existing precedent for almost a century is that the prohibitions placed on the government by the Bill of Rights were limitations placed on the national government and that there existed no remedy should the states impede on those freedoms. Again, you might say, well this seems like a good idea on its face. But it is through this selective incorporation that the central government has run roughshod over Dixie on matters of social policy. Fie and tut. It took until 2008 for selective incorporation to benefit conservatives, when in another 5-4 decision, SCOTUS held that the 2^nd amendment does grant individual citizens the right to bear arms.

Of course, that really only affects Yankee gun owners living in liberal states and in the Swamp, so I’ve got to say that the juice was not worth the squeeze. I’m a rare bird in that I recognize that the commie states are free to ban guns within their jurisdictions. Is it a bad policy? Meh. The existence or non-existence of gun laws does not determine whether or not there will be crime. Cultural enrichment does. Connecticut has very strict laws and, outside of Hartford, has a very low murder rate. Maine has very loose laws and an even lower crime rate because it has no diversity. Louisiana has similarly loose laws and an astronomical murder rate because of New Orleans, Baton Rouge, and Shreveport. I think you see what I’m getting at, even if it is a digression. I may like the outcome of Heller, but I do not agree with the concept which brought us that decision.

The point is that precedent only exists for a progressive so long as they agree with it. They will litigate repeatedly, no matter how many times they are defeated, if the law of the land runs counter to what they want it to be. Then, once the zeitgeist and the composition of the court has changed enough to render a new precedent, one which agrees with the progressive outlook, that precedent is now sacrosanct and cannot be challenged under any circumstances. Something something right side of history something something. Don’t agree? You’re a hateful bigot and a troglodyte.

This, then, is why I cannot be overly enthused by the decision which served as muse for this piece. The Supreme Court got it right, for once, but it’s only temporary. The Left will paw at the electric fence until it can claw through it. Kritarchy is tyranny. It is capricious in the extreme, subject to the whims of the moment. The judges can cloak it in whatever legalese they wish, but the fact remains that they are guided by a desired outcome, not by the law. Every single leftist victory over the past century has come not via the legislature, but from the courts. In most every case, the Court had previously ruled against the progressives. So much for precedent.

It does not help that the Republican party has been complicit in these schemes. Out of the previous 28 judges appointed to the Supreme Court, the Republicans have appointed 20. And yet, we are where we are. The Democrats have been 8 for 8. They wanted radical progressives and they got them. I’d be generous to say the Republicans got 8 right out of 20. Scalia, Rhenquist, Gorsuch, Thomas, and uh…hmmm. Let me get back to you on that.

In a Free Dixie, there will be no judicial review.

Deo Vindice