The Biden-Harris Plan to Upend the Constitution

Another leftist crusade driven by hate, fury, envy – and desperation. 

By Tim Donner | Jul 30, 2024 @ Liberty Nation News, Tags: Articles, Opinion, Politics

It came off almost like a schoolyard taunt from a lame-duck president desperate to restore his tainted legacy. It featured vintage campaign rhetoric, but from a man whose 50-year career in politics is now all but over, expressed in a series of proposals replete with lofty ideals for radical reform that he knows will go nowhere. Indeed, in a cliché-ridden op-ed in Washington’s most prominent newspaper on July 29, followed up by a speech at the LBJ Library in Austin, Texas, Joe Biden called for seismic reform: root-and-branch changes to the Supreme Court and a new constitutional amendment limiting executive authority.

If the 46th president had his way, he would end lifetime appointments to the High Court, limiting justices to 18-year terms, refresh the highest court in the land with new justices every two years, and institute a binding code of conduct. He also called for amending the constitution with what he amusingly calls the “No One Is Above the Law Amendment.” He left no doubt about his motivation when he added, “It would make clear that there is no (italics his) immunity for crimes a former president committed while in office.” One would think that a career politician like Biden would have masked his Trump derangement more effectively than that.

While it is hardly worth the time to examine the specifics of Biden’s plans any further since they will serve as little more than click-bait and talking points, the emotions and strategy animating them are worthy of discussion.

Root Causes: Hate, Fury, and Envy

First, let’s summarize the president’s agenda in plain language, shall we? Biden wants to upend the American constitutional system because he hates, fears, and envies Donald Trump.

We are already well aware of the president’s seething hatred for his predecessor and potential successor. But this op-ed revealed his passive-aggressive envy and fury. He is envious that Trump got three Supreme Court Justices confirmed in the space of four years while he got only one. He is furious that the Supreme Court has ruled on presidential immunity in a way that benefits Trump. He is envious that a single branch of government is delivering one victory after another for the right. He is furious that every indictment of Trump is crumbling. And he is both envious and furious that Trump is in a position to recapture the presidency.

To the matter of a law — or constitutional amendment — transparently aimed at a single person, Article 1 of the Constitution is clear. It specifically prohibits what’s called a bill of attainder — legislation declaring an individual guilty of a crime and allowing the government to punish the person for the perceived crime without due process. The provision is designed to strengthen the separation of powers by preventing Congress from assuming the functions of the judicial branch. While this is not directly applicable to Biden’s proposals, it captures the spirit of the framers and effectively defines the principle in play. Put another way, it is designed to assure that no man is either above or below the law.

In the wake of the recent High Court decision defining the parameters of executive privilege, Biden claimed “there are virtually no limits on what a president can do.” Of course, that is not true; a president’s protection is limited to official duties, and Biden knows it every bit as much as he knows Trump never actually called white supremacists very fine people. But, undaunted, he goes on to describe a court “mired in a crisis of ethics” — which apparently arose suddenly, as soon as Trump completed his trifecta of Supreme Court appointments assuring a 6-3 conservative majority. This is simply another broadside at the conservative justices, particularly Clarence Thomas and Samuel Alito, both subjects of recent intense investigations by left-wing media.

Intent on putting the mayhem of Jan. 6 prominently before the electorate once again, Biden tied the issue of presidential immunity directly to the Capitol riot, essentially warning that it is an invitation to insurrection. What is especially disturbing from this man who has been holding down the job for more than three years is that he ignored the grave consequences of any president being subjected to prosecution for decisions of great consequence if his private deliberations are subject to public disclosure and debate. This should be obvious to anyone not suffering from Trump Derangement Syndrome.

There was also another inconvenient truth revealed in the president’s plans: This is yet another sign of leftists’ utter dependence on the courts to enable their unpopular progressive ideas to take root. And it signals their futility in seeing the Court overturn its most valued decisions, most prominently Roe v. Wade, knowing there is nothing they can do to stop it.

Unless, that is, the rules of the game are changed.

Rescuing the Supreme Court

Biden needs to answer a fundamental question about his “plans” for the Supreme Court and a 28th constitutional amendment: If these reforms are so vital to the future of the republic, why did you wait until the 11th hour when you were the lamest of lame ducks to advance these radical proposals to alter one of the three branches of government and amend the Constitution?

Biden knows full well that a lame-duck president no longer wields power with Congress, especially in the heat of a presidential campaign. That renders these proposals nothing more than political theater. It’s as true of Biden as any other president: Had he been really serious about these reforms, he would have prosecuted the case during his honeymoon, the first 6 to 12 months of his presidency, when his approval was highest. Revealing these proposals after he was forced out of his re-election campaign looks like little more than swinging wildly for the fences in a race Democrats are losing.

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Another sign that these plans are not legitimate is that they should have been advanced by the person who would theoretically steward them through to completion. That would be Kamala Harris, not Biden. But by announcing these proposals himself, Biden lifts the burden from Harris of making such an explosive announcement while at the same time handing her a radical agenda consistent with her pronounced plans for a prospective administration. Sure enough, the VP added her endorsement to the plans shortly after Biden’s announcement.

When Republicans go big, they usually propose things like tax cuts or changes in energy or economic policies. When Democrats get ambitious, they attempt to pack the Supreme Court, remove justices they find objectionable, turn left-wing territories into states, and abolish the Electoral College – all designed to guarantee perpetual leftist control of the federal government. Put simply, while the GOP works within the constitutional framework built upon centuries of debate and deliberation, modern-day Democrats seem intent on dramatically altering the law of the land to reflect the current progressive age.

With one foot out the door, Biden is using the fading remnants of his bully pulpit to lecture the American people on the injustice of a system that he has upheld for more than half a century. In doing so, he has come to personify the famously depressing lamentation in Shakespeare’s Macbeth about life itself: “a walking shadow, a poor player. That struts and frets his hour upon the stage, and then is heard no more. It is a tale … full of sound and fury, signifying nothing.”

 Read More From Tim Donner

Keep Nine and Ban Court-Packing

March 20, 2023 By Janet Levy

The independence of the Judiciary — enshrined in the Constitution and essential to both the rule of law and democracy itself — has not been immune to attack.  Acting through Congress, the federal government has on seven occasions changed the number of justices on the Supreme Court, chiefly for political gain.  Such court-packing reflects badly on the American judicial system as a whole, since the perception of judicial independence or its absence permeates all levels of the courts.

To end the pernicious practice, a group of 15 former state attorneys general — eight Democrats and seven Republicans — got together in 2019 to found the Coalition to Preserve the Independence of the United States Supreme Court.  They proposed a constitutional amendment to permanently ban court-packing — the one-sentence Keep Nine Amendment — which says: "The Supreme Court of the United States shall be composed of nine Justices."...........To Read More....

 

Remember when it wasn’t OK to criticize Supreme Court rulings (when Trump did it)?

July 1, 2022 By Thomas Lifson

Possibly the dumbest reaction to the Supreme Court’s ruling in West Virginia v. Environmental Protection Agency came from Rep. Alexandria Ocasio-Cortez, although Justice Kagan, who has at least 50 IQ points on AOC, gave her some competition.  Just because her side didn’t get its way, she wants to destroy the Supreme Court, and possibly the entire judicial branch. “Reform” in this context means packing the court by expanding its membership with new appointees who are radical leftists. 

That would be reversed by the next Republican president and Senate combination, which would, in turn, lead to an endless cycle of court expansion until its membership started to rival that of Congress. The court would be destroyed. Which would amount to “doing away” with it, only without the necessary Constitutional amendment necessary to formally abolish the court.............To Read More...

The Cry-Baby Leftist Mind

How odd that leftists are destroying the very customs and traditions whose loss will come back to haunt them when Democrats lose the Congress in November.

  By Victor Davis Hanson June 29, 2022  @ American Greatness

 

Modern progressives assume moral and intellectual authority.  Consequently, their supposedly superior ends naturally justify almost any means necessary to achieve them.   Among the elite, the Democrats’ “blue-wall” states were once considered a testament to the wisdom of the Electoral College. When that wall crumbled in 2016 to Trump, the Electoral College suddenly was blasted as a relic of our anti-democratic founders.

 

The nine-person Supreme Court was once beloved. On issues like abortion, school prayer, same-sex marriage, pornography, and Miranda rights, the Left cheered the Court as it made the law and ignored legislatures and presidents. 

Republican Court picks—Harry Blackmun, William Brennan, Anthony Kennedy, Sandra Day O’Connor, Lewis Powell, John Roberts, David Souter, John Paul Stevens, Potter Stewart, and Earl Warren—would often flip leftward. How could they not be swayed by the greater brilliance of their liberal colleagues?   From affirmative action to Roe v. Wade to Obamacare, apostate Republican justices for a half-century greenlighted legislating from the bench. 

In response, was there any serious right-wing talk of packing the court with six additional justices to slow down its overreaching left-wing majority—or of a mob massing at the home of a left-wing justice? Certainly not.

But now? ................Every sort of once unthinkable attack on the courts is now permissible. ..........To Read More....

Senator Kennedy Stumps Supreme Court Nominee with One Question

Spencer Brown  @itsspencerbrown Mar 23, 2022

As Tuesday's Supreme Court confirmation hearing dragged into the evening hours, Senator John Kennedy (R-LA) raised a simple question about when constitutional protections for life — or even just life itself — begins. "When does life begin, in your opinion," Senator Kennedy asked Judge Ketanji Brown Jackson for starters. "Senator... um... I don't... know," Judge Jackson replied, followed by an uneasy, awkward laugh. "Do you have a belief?" Kennedy pressed. 

"I have, um, personal religious and otherwise beliefs that have nothing to do with the law in terms of when life begins," Jackson responded. "Do you have a personal belief though about when life begins?" Kennedy probed. "I have a religious view that I set aside when I am ruling on cases," Jackson evaded again.

Senator Kennedy pushed further on the point, asking Judge Jackson an important follow-up, "When does equal protection of the laws attach to a human being?"

"Well Senator, um... I believe that the Supreme Court... um... actually I, I actually don't know the answer to that question — I'm sorry — I don't," Judge Jackson responded, again with an ill-timed grin on her face as her initially confident answer turned to another know-nothing response.........To Read More...

   See the Judge Ketanji Brown Jackson story, by topic.  

Blackburn: Jackson Is to RBG’s Left on Gender, Won’t Oppose Court-Packing…

Ian Hanchett 23 Mar 2022

On Wednesday’s broadcast of the Fox News Channel’s “America Reports,” Sen. Marsha Blackburn (R-TN) argued that “everything is so woke” that Supreme Court nominee Judge Ketanji Brown Jackson is to the left of former Justice Ruth Bader Ginsburg on gender because Justice Ginsburg argued that “Physical differences between men and women…are enduring” and cited a prior ruling that “the two sexes are not fungible” and that Jackson won’t state her opposition to court-packing like Ginsburg did.

Blackburn said Jackson’s answer on the definition of a woman “shows you how politicized this process has become and how the left-wing dark money groups are feeding into this to the point that everything is so woke, she will not even give me the definition of the word ‘woman.'”......To Read More....

  See my list of updates, by topic, on this SCOTUS nominee. 

Packing Away the Constitution

Gary M. Galles  – January 2, 2022 @ American Institute for Economic Research

Packing the Supreme Court, not on anyone’s front burner when Barack Obama was President, sharply moved in that direction after Donald Trump was elected. Now with Joe Biden in office but facing a Court not likely to rubber-stamp his or Democratic legislative proposals, we’re back at it. And the potential for the Court to reconsider its Roe v. Wade precedent has supercharged court-packing support. A good illustration comes from Michael Hiltzik in the Los Angeles Times. He goes to great lengths to support the idea, but never once mentions fidelity to the Constitution as a criterion.  

Adding justices is a possibility, since the Constitution does not specify the number of Justices. The current total derives from the Judiciary Reform Act of 1869, so all it would take is a change in that law. But if you understand that the limits the Constitution was designed to place on federal overreaching are important, it is foolish, since not respecting those limits is the clear goal of court-packing proponents. As Ezra Levin said of Democratic presidential candidates in 2019, “Any Democratic presidential candidate who is serious about implementing a progressive agenda has to seriously consider appointing new justices to unpack the courts.”  

Such a purpose for court packing could hardly contrast more sharply with perhaps the most cited authority on the intended constitutional role of the courts, Alexander Hamilton’s Federalist 78:

The judiciary…can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgment. Consequently, The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because the least in a capacity to annoy or injure them.

In other words, Hamilton in Federalist 78 argues that courts are empowered only to do what seems diametrically opposed to court packers’ goals:

The courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments. That means, The complete independence of the courts of justice is peculiarly essential in a limited Constitution…Limitations of this kind can be preserved in practice no other way than through…courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

The main purpose of the Court was “to be an intermediate body between the people and the legislature…to keep the latter within the limits assigned to their authority.” That protective function requires that “Where the will of the legislature, declared in its statues, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.” In other words, “it will be the duty of the judicial tribunals to…guard the Constitution and the rights of individuals,” to make sure that “No legislative act, therefore, contrary to the Constitution can be valid. To deny this would be to affirm…that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

The purpose of remaking the courts into a Democratic Party adjunct would eliminate their role as a crucial balance wheel in the separation of powers, but Hamilton in Federalist 78 warned in no uncertain terms how serious it would be. “Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”

Anti-Federalists, who feared that the Constitution’s checks would be undermined by expansive court interpretations, enabling a federal government with unwarranted and undelegated powers, which led to the adoption of the Bill of Rights, said it even more strongly.

As Brutus put it, rather than relying on constitutional grounds for rulings, the Court would create them “by their own decisions,” through manipulating the meanings of vague clauses. It would adopt “very liberal” principles of interpretation, extremely perilous for a nation founded on the consent of the governed. It could easily invent “creative” rulings which would be backed with “the force of law.” 

Current court-packing proposals stand sharply at odds with America’s Founders. Proponents advocate violating the clearest statement in the Federalist Papers on the role of the courts. They would justify an “I told you so” from Anti-Federalists. And it is worth noting that both sides of the constitutional ratification debates rejected the purposes Democratic and progressive court packers have in mind. If the vision that formed our country is to be consulted at all, court packing that would undermine the Supreme Court’s central role is a bad idea.

That is why court packing proponents play up claims that the Court needs such a change to maintain its credibility with “the will of the people,” while ignoring the central issue of fidelity to the Constitution. They want what partisans on the left are in favor of today to override Constitutional limits.

However, Constitutional law is supposed to be different from other types of law. In common law, later rulings carry more precedential weight than earlier rulings, as a way of maintaining the continuity of people’s legitimate expectations. Similarly, later legislation can change earlier laws. But the Constitution is supposed to remain “the supreme law of the land.” Later deviations are not to create new precedents that effectively rewrite the Constitution.

However, the progressive “living Constitution” approach has turned Federalist 78 on its head. Divergent precedents are substituted for the Constitution, which effectively become the “new and improved” highest law of the land. Roe v. Wade, the apparent trigger for the latest spike in court packing proposals, is a case in point, relying on questionable penumbras and emanations to create a right not enumerated in the Constitution.

Desmond Caulfield put this point very clearly and succinctly in his “Privacy, Penumbra, and Emanations” letter to the Washington Post almost 30 years ago. It deserves careful attention: 

[The] description of abortion as a “fundamental right…is not supported by an examination of the provenance of the easy access to abortion now available in the United States. To the contrary, the facts reveal this “right” to be little more than an intellectually clumsy contrivance of the Supreme Court and an astonishing display of judicial arrogance.

Writing for the majority in Griswold v. Connecticut (1965), a case unrelated to abortion, Justice William O. Douglas understandably found he was unable to cite a generalized right to privacy in the Constitution itself. Undeterred, he went on to discover a “penumbra” (from the Latin paene umbra, meaning “almost a shadow”) formed, he said, by unspecified “emanations” from the Bill of Rights. Justice Douglas then placed within this extra-constitutional near-shadow a hitherto unknown “zone of privacy,” which was transformed into a “right of privacy” by the simple device of the court’s substitution of the term “right” for “zone” in its later decisions.

How this mysterious trinity of privacy, penumbra and emanations had eluded legal scholars for the then 176 years of our constitutional history was (and is) a question left unaddressed by the court.

Nevertheless, by 1973, its own legal sleight of hand enabled the court in Roe v. Wade to cite a “line of decisions” that had established a generalized right to privacy and that had, without further explication, become “broad enough” to include a virtually unrestricted right to abortion.

Rather than revealing any respect for the Constitution as originally written or understood, those who like such results subsequently try to cement them in place by demanding allegiance to those precedents from then on. But rather than stating things so baldly, they claim adherence to the principle of stare decisis (Latin for “to stand by things decided”), which means the Courts should adhere to its own precedents they like (as with Roe v. Wade). Of course, it is when the precedent they like is at variance with the Constitution that they roll out stare decisis claims.

That is why the distinction between the role of precedents in constitutional law and other types of law is critical. Should we be faithful to the Constitution, and the sharply limited federal government of enumerated powers it created, as the earlier, controlling precedent, or should we accept precedents that have already warped it almost beyond recognition? After all, if the meaning of the Constitution can easily be changed by innovative judicial interpretations, rather than the difficult process spelled out to implement Constitutional changes, then it cannot be the highest law of the land in practice.

Further, if the Supreme Court must defer to earlier precedents out of adherence to stare decisis, there is no respectable defense for those activist rulings liberals are now so desperate to defend, since they clearly deviated from earlier constitutional precedents.

Principled interpreters of the Constitution do not advocate overturning valid Constitutional precedents, but precedents that deviated from it, as the only way to maintain it as the “highest law of the land” in fact, as well as on paper. Court packers want to demote it to preserve every precedent they like that was not derived from the Constitution. But that would put all our Constitutional rights at risk, because as Hamilton wrote, “Without this, all the reservations of particular rights or privileges would amount to nothing.”

READ MORE

Gary M. Galles

Dr. Gary Galles is a Professor of Economics at Pepperdine.

His research focuses on public finance, public choice, the theory of the firm, the organization of industry and the role of liberty including the views of many classical liberals and America’s founders­.

His books include Pathways to Policy Failure, Faulty Premises, Faulty Policies, Apostle of Peace, and Lines of Liberty.

Books by Gary Galles

Court-packing: The left mounts a pincer movement

August 12, 2021  By Jeremy Dys 

With prospects for court-packing growing ever dimmer, President Joe Biden’s Supreme Court study commission trundles on. Like some law school debate society, the scholars and activists on the commission continue to cross swords on various reform proposals that are months away from any reality check by Congress or the American voter.

Biden’s refusal to eliminate the Senate filibuster defuses the Democrats’ main weapon to push through their radical agenda — including court-packing — with brute force politics. “There’s no reason to protect it other than you’re going to throw the entire Congress into chaos and nothing will get done,” the president opined. “Nothing at all will get done.”

Biden has also made it known that he’s “not a fan” of court packing and in the past has described it as a “bonehead idea.”

Stymied at the Supreme Court level, the radical left is pivoting to Plan B: pack the federal judiciary from the bottom up with like-minded ideologues. House Democrats introduced a bill to add more than 200 judgeships, even though the judiciary’s own study only calls for 79 new lower court judges to handle growing caseloads. The goal is the same: Destroy the independence of the judiciary and put all political control in the hands of Congress and the White House -- where the levers of power are in Democrats’ hands.................To Read More.....