The American Spectator

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Greg Richards /p>

George Neumayr is the first to speak the obvious, that if the justices do not obey the law, neither need anyone else. If these philosophes wish to be Jacobins, then give them a ride in state, in the tumbrels. "Aux lanternes!" But though this particular solution is as justified as it is long overdue, it would legitimize anarchy, and should be held in check until a solution is tried which would both remove the miscreants and re-enshrine constitutionalism.

It seems strange that constitutionalists have not paid more attention to Article III where a solution appears in front of our noses. Article III states that "(t)he judges, both of the Supreme and inferior courts, shall hold their offices during good behavior...." (emphasis added). While it is established by custom that "good behavior" has come to be interpreted as "life tenure", there is no reason to believe this was the original intent. Had the founding fathers meant life tenure, they would have said so. "During good behavior" plainly means that appointed justices shall not be subjected to the periodic tests of recurring re-elections, as are the legislators and executive. And it also plainly means that when "good behavior" ceases or is notably interrupted, that the justice's tenure also ceases. And the founders would have been outraged by the suggestion that unassisted peristalsis and respiration were the defining criteria of good behavior. Most certainly activism which denies and ignores the clear statement of the Constitution counts as "not good behavior". For half a century, arguably longer, the Justices of the Supreme and the inferior courts have promulgated opinions clearly anti-constitutional by unconstitutional arguments, giving full justification for removal. Since there is no explicit statement that a supermajority is needed to remove a Justice, it is possible to remove a miscreant by a simple voting majority. We merely need to try.

The abridgement of free speech by the court's upholding McCain-Feingold would be a justifiable reason, but impractical since both the legislature and executive have already voted for that measure. However, several cases in which the justices have blatantly overstepped the bounds in siding against the rights to free practice of religion, attempts to extend legal protections to enemy combatants, abridgement of property rights in Kelo and the public declaration by a justice that he rendered his decision based not on American but foreign law are all cases which demand removal. The latter two instances might even be construed as "giving aid and comfort to enemies" and "making war on the United States". Placing foreign law above U.S. law is clearly an aggressive act, tending to betray America to foreign control.

As another measure, we might note that there is no constitutional requirement that the Supreme Court number nine justices. They might be eleven, seven, or five... or even eight in number. With an even number of justices, appellate decisions would stand in the event of a tie.

p>The "wet diapers conservatives" are already whimpering that such an act will cause discord and lead to disharmonious confrontations. As if that were not already happening. Yes, a few messy fights, but it would re-establish the principles that courts are not above the law, and that they too may be checked and removed, and that the Constitution means what it says. br> -- George Mellinger /p>

As conservatives bellowed and decried judicial activism over the last 40-some-odd (very odd) years the liberals, always with a wry smirk, patted us on the back and educated us lesser beings in the fineries of Constitutional law with lectures about "living, breathing documents."

Now its seems that Constitutional sanity just might be catching its breath and the liberals are about to learn what all other civilizations have known for the last 10,000 years: He who lives by moral relativism dies by moral relativism. If they can massage "equal protection under the law" to mean "right to privacy" to mean "kill your babies" maybe we can massage "right to privacy" to extend to unborn children enjoying an uninterrupted stay in the uteruses they happen to be occupying through no particular fault of their own. The fact of the matter is, any morality can mean everything and anything really means nothing. Certainly no religion can survive such vagaries.

And liberalism is a religion. Abortion and sodomy are its sacraments. Excrement-covered iconography (of other religions) is its taxpayer funded and extremely expensive paraphernalia and it brooks no heresy. The liberal religion holds a quasi-Marxist eschatology that declares thesis and antithesis would somehow yield synthesis from their dialectical tensions. No part of that trinity has ever been observed in all of human history so when Marx wrote of it he was acting purely in the role of a prophet, declaring something that no naturalistic observation could confirm. His followers read it, they believed it and continue in that belief as an article of faith. They believed that once the harbingers of the universal coming of egalitarianism were written into law nothing could stem the tide of the prophecy's final fulfillment.

Ah, but the electorate giveth and the electorate taketh away. The kismet of Mechanistic Progressive theory falls flat when the freewill of consensual government enters into the picture. Now after forty years the American people are starting to think that separating church from state--at least their church from our state--isn't such a bad idea after all. The American people have created for themselves a presidency and a senate that can cast down these self-deifying moralizers. It may take the ordinarily timid Republicans gathering the courage of Prometheus but the eagle will pick their livers only if they fail, not if they succeed. Judging from the pre-announcement furor coming from conservative circles I think they just might. Now all that remains is to see how the liberals deal with the final slaying of their sacred cows.

p>May I suggest we hide the Kool-Aid.

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