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Why Do We Have Judges?

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With the Democrats in full scream over the nomination of Brett Kavanaugh to the Supreme Court, it’s worthwhile to consider just why we have courts and judges.

The earliest record of judges is in the story of the Exodus. Moses, the prophet and leader of Israel, “judged between a man and his neighbor, and made known the statutes of God and His laws.” (Exod 18:16 NAS) He was overworked, since there were many disputes. At the urging of his father-in-law, Moses appointed “able men who fear God, men of truth, those who hate dishonest gain” (Exod 18:21 NAS) as judges for these minor disputes.

These judges applied God’s laws to the disputes brought to them. This required absolute loyalty to the law and the truth (they “feared God”). They were also supposed to avoid accepting bribes. In short, they were the model of what we should expect a judge to be.

It took a long time to get from Moses to modern courts and judges. Our current system started under Henry VIII in 1178, when the king appointed five members of his household to “hear complaints and do right.” Over time, judges became more educated, and laws enacted by Parliament became a firm standard for their decisions. Even the King was bound by the law.

In the 17th century, it became clear that it was necessary to forcibly separate the functions of making law, executing law, and adjudicating disputes under the law. If the King was able to make law by decree, carry out laws he decreed, and remove judges at will, the King was the law. He could rule with a pen and a phone.

The three independent functions of government became our American separation of powers doctrine. Congress writes the laws, the President makes sure that the laws are “faithfully executed,” and the Courts apply the laws to disputes. Within that structure, we added one key element: the Constitution.

The Constitution is our highest law, and is the standard by which all other laws must be measured. A law contrary to any part of the Constitution is unconstitutional, and can properly be ignored. The question is, “By what standard do we assess constitutionality?”

The Left pushes a theory called “the living Constitution.” That is, the Constitution is subject to change as society changes, without any need for the inconvenience of going through the amendment process. As the late Justice Brennan said, judges must “give meaning” to the Constitution, implying that it has no meaning until the Court declares it. The appeal of this view is that it responds to political pressure. It turns the Courts into what the Wall Street Journal calls the Left’s “preferred legislature.”

The Right prefers an approach that is variously called “originalism” or “textualism.” That is, the Constitution is a document that had a very specific meaning when it was adopted. If we wish to apply it properly, we must understand what its text meant to the Framers. If we wish to change it, we must go through the difficult process of amending it.

That tedious process makes amending the Constitution really hard. Six amendments that were submitted to the states, including one still pending from 1789, haven’t made it. Even with a great popular push, the Equal Rights Amendment didn’t make it. This difficulty stands directly in the path to fundamentally transforming America the way the Left wants to do. So they love it when judges adopt legal theories that let them ignore the original understanding of the law. And that brings us to our next question.

What is “the Law?” Conceptually, the law is a set of principles and statutes that allow us to have an orderly society. In short, if you act in a proper manner, your actions will be lawful. But to know what is proper, you must have public standards of behavior that do not change from day to day. The easiest way for this to happen is to have recorded laws. These are specific, written documents that describe what is and is not acceptable. Short of such statutes, all of us look to what “The Average Reasonable Person” might do. Common law embodies this TARP standard, which often makes its way into written statutes.

All of us depend on the fundamental premise that law is reliably fixed. It doesn’t change when the wind blows. It isn’t necessary to bring policy preferences to the process the way a “wise Latina” might. The text of the law tells us how to (not) behave. Questions only come when the text is unclear.

Suppose that the law is whatever a particular judge decides it is. If I’m called before a racist judge because my trash talking on the basketball court offended someone, I might expect to experience harsh penalties. If the judge is a conciliator, he might take the two of us out to lunch and expect us to “get over it.” How should I know how to behave?

But if I’m taken before a judge who reads the law carefully, I’ll receive whatever treatment the law regards as just. Thus, when Congress passed mandatory sentences for crack cocaine possession that were ten times those for powder cocaine, judges who hated the law found themselves imposing the harsh sentences on lots of young black men. No “wise Latina” could get around the plain text of the statute.

The remedy for this inequity in cocaine sentencing could not properly come from the bench. Our separation of powers does not allow a judge to rewrite the law. No executive with “a pen and a phone” can do it, either. Only the legislature has the power to change laws.

How does a judge determine what a law means? The first step is to read the text. Most of the time, that’s all that’s needed. But what if the language is unclear? The President may be impeached for “high crimes and misdemeanors.” Does this term of art mean that the President must have committed an indictable offense under criminal law? President Clinton perjured himself. That was indictable and impeachable. But is Tweeting personal insults impeachable? Alan Dershowitz argues that it is not. Even researching what the Framers thought leaves us with questions.

Most laws aren’t that big a problem. But administrative law-making is a real problem. Congress has become fond of passing vague laws that will say “XYZ agency shall implement this by regulation.” And XYZ agency goes to town. Since 1984 (George Orwell, can you hear us?) the Supreme Court has let them expand their powers through a doctrine called “Chevron Deference” (Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984)). The Supreme Court declared that if an agency was not unreasonable in its interpretations of a statute, its rulings should be accepted by the Courts.

As Judge Cavanaugh notes, Chevron encourages agencies “to be extremely aggressive in seeking to squeeze its policy goals into ill-fitting statutory authorizations and restraints.” “Chevron is nothing more than a judicially orchestrated shift of power from Congress to the Executive Branch.” Administrative agencies have used it to make rules that stretch the law to the breaking point. A classic is the “Waters of the USA” rule, where a farmer who cleared brush out of a ditch was fined for “destroying wetlands.” But the statute only addresses “navigable waters.” The EPA had become a super-legislature, an unaccountable fourth branch of government that cannot be found in the Constitution.

Should the farmer have expected that his fully reasonable act of maintaining his farm would be illegal? Of course not. But when the Courts accept interpretations that fall outside the text and meaning of the law as enacted, the rule of law vanishes. Policy preferences now create “law” that no one can know and punishes even the most law-abiding.

But this is exactly what the Left demands. They have been unable to get their policy preferences translated into law. So they demand that they be allowed to transform the law to match their policy preferences. Yet at the same time, they demand that a judge be bound firmly by stare decisis.

This Latin phrase means “let the decision stand.” It says that once a question has been decided by the Courts, that decision should govern how we understand the law. The Left demands that stare decisis is crucial to a judge. And why should we argue? Stare decisis creates a stable understanding of the law so an ordinary person can know how to act. But the Left only wants stare decisis in certain areas.

Roe v. Wade is sacrosanct. No judge should ever, ever, ever consider overturning it. But where in the Constitution do we find Roe’s “right to privacy?” It’s not there. And how does a “right to privacy” excuse the destruction of unborn life? Those are real questions that aren’t answered in Roe.

But what about Dred Scott, which protected slavery, or Korematsu which legalized FDR’s imprisonment of US citizens of Japanese heritage? Those decisions were stare decesis and overturned, with nary a peep from the Left. But when Janus overturned Abood, the Left went into full cry. Why? Janus took away money that unions could use to support Democrats.

Let’s put this in simple, declarative language. The Left supports a stable set of laws when it suits their policy purposes. Stare decesis is wonderful when it protects a Leftist legal standard. But when the clear text and meaning of the Constitution won’t let them do what they want, suddenly we have to have a “living Constitution.”

Americans must have a set of laws they can understand. Those laws cannot change because some bureaucrat or judge wants a different outcome. There is a prescribed way for laws to be changed. Laws must be rewritten by Congress or the Constitution amended by the States. There is no other way for ordinary citizens to be able to obey the law.

It is crucial for judges to protect the law as written. Anything else leads to the destruction of civil order and ultimately destroys America. No judges should be allowed near any court if they do not faithfully apply the text of the law to the questions before them. Fortunately, Judge Cavanaugh has shown himself to be fully committed to the law. He deserves our support.

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Culture and Religion

The complete fraud that is socialism

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The complete fraud that is socialism

Once again we are witness to the age-old scam of socialism with Leftists making promises to attain power that can never be fulfilled.

Long before Aleksandr Solzhenitsyn’s Gulag Archipelago exposed the systematic oppression, torture, incarceration and deliberate mass murder that are the hallmarks of socialistic slavery. James A. Michener documented the 1956 Hungarian uprising against communism in his book ‘The Bridge at Andau’. While both are great literary works, ‘The Bridge at Andau’ laid bare the complete fraud that is the collectivist ideologies in creating a ‘Heaven on Earth’ or ‘worker’s paradise’ that never comes to fruition.

The selling of socialistic slavery to a new generation tends to follow a certain type of ‘progress’. Promises are made for all kinds of largess ranging from Free Healthcare, Free Housing, Free College, Free food to even Free income. All paid for with other people’s money. Never mind that It’s impossible to fulfill all of these wondrous asseverations. Appearances must be made to at least begin the process, so the ever-present task of wealth redistribution begins at the point of a gun.

This is also why the Socialist-Left obsesses over gun confiscation and the suppression of free speech. It is imperative for the Leftists to disarm the people since they generally object to having their property stolen from them. However, we are getting ahead of ourselves, this is to document how this exploitation of the people has ‘progressed’ in other collectivist enclaves to better understand how this crime against the people is perpetrated.

Why do collectivist regimes always require secret police apparatus and the suppression of Liberty?

This question was detailed in The Bridge at Andau in the chapters on the ‘AVO man’. In which he discusses the secret police organisation of the Hungarian Communists, the AVO (Allamvedelmi Osztaly). He bluntly asked and answered the question:

Why must communism depend on such dregs of society?

No matter on what elevated plane communism begins its program of total dictatorship. it sooner or later runs into such economic and social problems that some strong-arm force is required to keep the civil population under control.

As is the case now as it was then, a nation’s Socialist-Left will promise just about anything to attain power over the people:

When communism is wooing the workers in Csepel, all kinds of exaggerated promises are made if they seem likely to awaken men’s aspirations and their cupidity. These promises are couched in such simple terms and such effective symbols that they become immediate goals of the revolution.

Review briefly what communist agitators had once promised the Hungarians who appear in this book: consumer goods such as they had never known before, increased wages. increased social benefits, shorter hours of work, improved education for everyone, a greater social freedom, and a government directly responsible to the working classes. Under communism such promises were never even remotely capable of attainment.

[Our Emphasis]
If all of that sounds eerily familiar, it’s because that’s part of a very old song and dance that has deceived many a generation into enslaving themselves under socialism. Consider this recent story from the Associated Press:

Democrats lurch left on top policies as 2020 primary begins

NEW YORK (AP) — Democratic presidential contender Julian Castro launched his campaign by pledging support for “Medicare for All,” free universal preschool, a large public investment in renewable energy and two years of free college for all Americans.
….

New Jersey Sen. Cory Booker, who is expected to launch his presidential campaign soon, has sponsored legislation to create a federal jobs guarantee program in several communities across America.

The pilot program… could ultimately transform the U.S. labor market by providing well-paid government employment with benefits for anyone who wants it.

[Our Emphasis]

As Margaret Thatcher so aptly surmised, eventually they will run out of other people’s money. In our case in the states, that is already the situation given the enormous debt and unfunded liabilities reaching into the stratosphere of trillions of dollars. Of course, this hasn’t deterred committed collectivists such as Democratic mayor Bill de Blasio who recently stated that ‘There’s plenty of money in the world… It’s just in the wrong hands!’ Never mind that it is morally wrong to steal the property of others or that once a society turns down the dead-end of socialism there will always be more people wanting more money from those who have it.

Wealth redistribution scams will always wreck the economy. A socialist regime that nationalizes the economy can never function better than one of economic Liberty. Soon enough everything breaks down, the people see through the lies and the government has to start breaking heads. Thus it is imperative that they have previously confiscated the people’s guns and made it illegal to defend themselves.

The Takeaway

Socialistic schemes always run contrary to basic human nature. Rewarding someone for not working will always result in less work. Conversely, punishing someone for working will also result in less work.

This basic logic of human nature seems to be lost on Leftists. But perhaps it is not. They have to know their schemes have never and will never work. And yet they still try to impose them on everyone else. Perhaps they know of the epic fraud they are continually perpetrating on society, but they don’t care. That will be the subject of our next installment.


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Democrats

Dan Crenshaw: Only six Democrats voted to pay federal employees affected by shutdown

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Dan Crenshaw Only six Democrats voted to pay federal employees affected by shutdown

While most were drinking the mainstream media Kool-Aid that Republicans and President Trump are responsible for keeping paychecks out of the hands of federal employees affected by the government shutdown, a bill was brought to the House floor that would have paid them their first paycheck of 2019.

It failed. Despite six Democrats voting in favor of the bill, the Democratic majority shot it down, preventing their political pawns – the 800,000 people directly affected by the government shutdown – from getting paid.

Representative Dan Crenshaw (R-TX) pointed it out and received a good amount of interactions on Twitter, but most in mainstream media refused to run this narrative-busting truth.

It’s crystal clear to anyone paying attention that their anti-wall rhetoric is driven by the good optics they’re getting from the press. If the people would stop being sheep and listen to that quiet voice of reason in the back of their minds, they’d realize two things:

  1. Democrats don’t oppose the wall. They oppose giving the President a win. They will keep the government shutdown going as long as possible and any attempts to help the people affected by it will be shot down.
  2. All of the false claims about the wall are politically motivated outside of the realm of common sense. The latest talking point, that the wall will be ineffective, is contradicted by every statistic that compares illegal immigration with or without a wall.

This is clear proof the Democrats have no desire to help the people if it means taking away their leverage on the President. Given the choice between paying federal employees or harming the President politically, they chose political expediency.


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Culture and Religion

The real story here is that a radical activist took on high school kids

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The real story here is that a radical activist took on high school kids

The Covington Catholic School story has taken on a life of its own. What started as an attack against MAGA hat-wearing teens who supposedly went after a Native American Vietnam War veteran has turned into a witch hunt by leftist mainstream media to prove their righteous indignation towards the kids was justified.

But at the core of the story is something that most seem to be missing. Nathan Phillips isn’t a random activist. He’s an outspoken radical who intentionally inserts himself into situations to draw attention to his cause. We saw this clearly the day after the viral video was shot (but before it went viral) when he tried to storm a Catholic church to disrupt worship services. Those are not the actions of a peace-seeking, mild-mannered activist for Native American rights. They’re the actions of someone seeking trouble for the sake of attention.

Then, there’s the question of claims that he was a combat veteran who fought during the Vietnam War. To be fair, these are not necessarily his assertions, though I haven’t read everything he’s said about that period in his life. But mainstream media has painted him on multiple occasions as essentially a war hero. His claims have been that he was a “Vietnam times veteran,” which is obviously meant to insinuate he participated.

Thankfully, many of the publications that painted this picture of Phillips have since started editing their stories. Nevertheless, the damage is done. His reputation as a Vietnam War hero is still prominent in the eyes of those who read the initial stories and haven’t gone back to reread them since the corrections were made. We can assume that means nearly none of them have learned of the correction. That’s why he’s still being widely labeled as such on social media.

One of his claims to fame is that he starred in a Skrillex video that depicted armed opposition against law enforcement as a potential solution for those who are being forced from their homes by a land developer.

The sum of the parts of this story paint a very strange picture of Phillips. There is absolutely nothing wrong with activism for the sake of Native American rights. The cause is a righteous one and most activists are doing their part to properly bring awareness to the American people while working with governments in their plight.

Phillips doesn’t fall into that category. His stories keep changing, but the truth is still a mystery.

As our EIC noted yesterday, he claims to be a hero but he’s not.

Nathan Phillips claims to be a hero, but he’s the reason “MAGA kids” are now being demonized

http://noqreport.com/2019/01/22/nathan-phillips-claims-hero-hes-reason-maga-kids-now-demonized/There have been multiple shifts of the narrative being pushed by mainstream media about the Covington Catholic School “MAGA kids” since it first went viral. Each shift further demonstrates the far-left’s unhinged nature and mainstream media’s desire to attack conservative Christians no matter what the facts of the matter say.

All of this goes back to Nathan Phillips, the Native American who sparked the incident by trying to march through the group of kids. It wasn’t necessarily his actions that should be condemned, but how he portrayed the whole situation and his role in it have perpetuated the falsehoods that are being reported by mainstream media even today.

This all brings us back to his “opposition,” or at least the people he apparently opposes. By no means do I believe these kids are innocent. They’re kids. They were thrown into a situation they didn’t know how to handle, but even in those circumstances they handled it fairly well. Nick Sandmann, the “smirking MAGA kid” who was literally at the center of the initial controversy, is having to go on air to defend himself, his school, and to try to prevent the threats that have hit their community.

It’s a disgrace that these kids couldn’t just go to the March for Life unscathed. The trashy people who continue to dig into their pasts, shame them, and threaten their lives are being driven by the progressive worldview that is intolerant of the hats they wore.


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