Tuesday, March 10, 2020

SCOTUS and the Constitution

By Rich Kozlovich

On 10/20/2016 Jacob Sullum published the article, Neither Trump Nor Clinton Understands What the Supreme Court Is Supposed to Do. Saying that "both candidates promise appointees who share their policy views."

Well, they're not alone as the author notes:
Moderator Chris Wallace started the discussion off on the wrong foot by asking the candidates where they "want to see the Court take the country," implying that justices are legislators in black robes, pursuing a policy agenda instead of deciding the controversies that come before them. Both candidates seemed to agree with that premise.
He goes on to note:
Clinton is also wrong when she says "the Supreme Court should represent all of us."
Wrong.  As he notes that's the job of the legislature, not the judicary.  When the nations leader's don't know what the court is supposed to do, why should anyone else?

But we should be asking:  Why don't they know?

There's a reason why the candidates don't know what the Supreme Court is supposed to do.....because no where in the Constitution does it tell the Supreme Court what it's supposed to do.  At one time they actually heard ordinary cases of law.....because even the Surpreme Court didn't know what it was supposed to do. 

So they decided to decide for themselves what the Supreme Court should do, and how much power it should have over the federal government and the states and their laws.   And the privileges they've decided to annoint themselves with over the legislature has become decidedly unconstitutional in concept if not in law.  In short....they may be obeying the letter of the law (which I disagree with in many cases) but they've failed to follow the concept of the Constitution, and it's high time they were reined in by the federal government. 

Why didn't the founding fathers outline the duties of the Supreme Court?  Because they were intelligent well read men, who were historically litterate, many had legal expertise, and they knew it was impossible to anticipate future events.  So they created a fix that would allow for some form of control without ending the purpose of the Supreme Court. 

They gave the Congress power to determine the juridiction of the Supreme Court, the only court mentioned in the Constitution.  All other federal courts are creations of the Congress.  But all of them are subject to the Congress' power to determine their jurisdiction, including eliminating any federal court except the Supreme Court. 

It's time they did so, or pass a 28th amendment, which is my preference.

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