The Discerning Texan

This week it is my honor to pose the question for this week's Weekly Symposium over at Homespun Bloggers, which is basically a group of fellow bloggers who go out almost every day and lay themselves on the line, not for fame or money or other such things, but more as a labor of love. We do it because in the 21st century the world will increasingly be influenced less by media conglomerates harboring a decidedly destructive agenda, and instead will be influenced more and more by the people themselves. People like the Homespun Bloggers.

The blogosphere provides a tool that we've never before had in human history: the ability to debate and interact with people from all corners of the globe--from our own living rooms; and of equal importance, for our daily news and information fix, we can now bypass the media elites who have held Western Civilization hostage since the invention of the printing press.

I therefore wanted my question to be both informative and thought provoking--and I am anxious to see what kind of intelligent answer the people who do not share my world view can come up with; I might have an opinion about what that will mostly be, but perhaps someone will surprise me and prove me wrong. Reasoned Debate and understanding is never a bad thing. So without further adieu:

The US Constitution requires a "supermajority" only in the following instances:

• Article I - To expel a member of Congress
• Article I - To vote to convict in an Impeachment Trial
• Article I - Legislation can be enacted over a Presidential veto if two-thirds of each house approves
• Article II - The ratification of treaties
• Article V - To amend the Constitution
• 14th Amendment - To restore the right of federal service to Civil War Confederates who had previously sworn allegiance to the United States
• 25th Amendment - Two thirds of both houses can conclude the President is unable to discharge the powers and duties of his office.
  

The Constitution does not require a supermajority to approve judges, however it does give the President the authority to appoint federal judges "with the Advice and Consent" of the Senate.

In Federalist 66, Alexander Hamilton wrote:

"It will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will of course be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose--they can only ratify or reject the choice he may have made."

Here then is my question:

Given the facts listed above, and given the recent attention to the judiciary resulting from the Terri Schiavo and other controversial decisions of an "active judiciary", does the President of the United States have Constitutional authority to an up or down (simple majority) vote on his judicial nominees? If not, describe the basis of Constitutional law under which this right is forfeit.

And, to hopefully get things rolling, here is my own response:

More than any other enemy of the United States, foreign or domestic, the thing that makes me the most fearful is that the greatest country on the face of the Earth might not make it to our 300th year because we are moving further and further away from the original vision that our Founding Fathers had when they crafted probably the most important legal document that has ever been created by man: the US Constitution. For when these brilliant men got together and crafted the basis for all our government and law in 1789, it set into motion what is without doubt the most successful experiment ever; an experiment that allowed human beings of all shapes, sizes, talents, races, and religions to not only coexist in one place relatively peacefully, but to thrive, to create wealth, power, and individual freedom such as planet earth has never seen, before or since. And it accomplished these things because of three things in my mind:

• The Constitution encouraged individuals to be responsible for their own actions and outcomes, and took ideas from probably the greatest economic text ever written: The Wealth of Nations.
• It created three co-equal branches of government, designed so that none of the three branches could achieve absolute power over the other two; it allowed for a periodic orderly transition of power; and most importantly, it was created to be flexible enough to evolve as we evolved.
• It was created by moral men, coming from a perspective of a Judeo-Christian code of ethics (a code of ethics that is also at least similar to those espoused by most other great moral philosophies and religions of the world). These men had seen the very freedoms, which they so meticulously wove into every carefully selected word of this document, denied them by colonial empires whose ambitions were more firmly grounded in greed, exploitation, and in the consolidation of power and wealth. The Founders set a different course: their vision was to create a system where individuals could flourish, and where the tyranny of those who lust for power could never grow so powerful as to destroy its precious balance. And they also fought two bloody and costly wars, against all odds, so that their vision of that "City on a Hill" might be realized, a vision that includes democracy and representation, but within specific guidelines, checks and balances--so that this "Democracy" never degenerated into a nation of mob rule.

Because of the Founders' great concern for morality, civil rights, and the dignity of their fellow man, the Constitution had to provide a place where the people were free to practice the religion of their choice, were free to speak up in public debate without censure, and were free to create their own individual path in life through the fruits of their labor, without government interference or hegemony, according to the principles of men like Adam Smith, Alexis de Tocqueville, and Alexander Hamilton.

Today all of these "foundations" of this great country are under attack. There is of course the overt attack from those abroad who covet what we have, who cannot stand how successful our grand experiment has been, and who fear their own populations will soon crave the same freedoms that we have all enjoyed for over two hundred years.

But the greatest threat to our country is our own ignorance of the peril that threatens us from within: namely the tyranny of certain people for whom the Constitution, and the great sacrifice of blood and labor to create it, means absolutely nothing. I am talking about "activist judges": men and women who do not give consideration to the law that their country was founded on, law they are sworn to uphold, but who instead believe that they have the right and power to enact their own law: no matter what the Constitution may or may not say about it.

In our Constitution, the People make the law, through our elected representatives in the Legislative Branch. The Congress crafts legislation based on the People's wishes, and it is approved by President, also elected by the People. Judges, on the other hand are NOT elected, and they are supposed to interpret the law, not to create it.

At the time the Constitution was drafted, the great fear was that the Judicial Branch would be overwhelmed by the other two branches. But in practice the reverse has happened. Indeed by 1825, Thomas Jefferson was already warning us:

"This member of the government was at first considered the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is...by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would dare not attempt"

In an escalating battle fueled only by partisanship and the hatred of Americans who merely want our judges to interpret our magnificent Constitution, not to MAKE laws themselves or override the people's Constitutional right to enact laws through its legislature, a small bitter minority who favors judicial activism does so for one reason and one reason only: they see it as the only way they can have power to tell us how to live our lives, regardless of the will of the People. For judges to be making law rather than interpreting law is, quite simply, a form of tyranny. Justice Scalia recently put this very eloquently:

"So it is literally true, and I don’t think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text, and even from the traditions of the American people. It is up to the Court to say what is covered by substantive due process. What are the arguments usually made in favor of the Living Constitution? As the name of it suggests, it is a very attractive philosophy, and it’s hard to talk people out of it: the notion that the Constitution grows. The major argument is the Constitution is a living organism, it has to grow with the society that it governs or it will become brittle and snap.

This is the equivalent of, an anthropomorphism equivalent to what you hear from your stock broker, when he tells you that the stock market is resting for an assault on the eleven-hundred level. The stock market panting at some base camp. The stock market is not a mountain climber and the Constitution is not a living organism for Pete’s sake, it’s a legal document, and like all legal documents, it says some things, and it doesn't’t say other things.

And if you think that the aficionados of the Living Constitution want to bring you flexibility, think again. My Constitution is a very flexible Constitution. You think the death penalty is a good idea: persuade your fellow citizens and adopt it. You think it’s a bad idea: persuade them the other way and eliminate it. You want a right to abortion: create it the way most rights are created in a democratic society. Persuade your fellow citizens it’s a good idea, and enact it. You want the opposite, persuade them the other way. That’s flexibility. But to read either result into the Constitution is not to produce flexibility, it is to produce what our constitution is not designed to produce: rigidity."

And so we come to a simple question: do we stand by and continue to do nothing as the angry minority continues to erode everything that this country stands for? Are we going to allow our Constitution to be tossed aside by a radical minority, who would put into place judges who do not interpret the law as is Constitutionally mandated for them to do, but who would instead usurp the rights of the people to determine their own destiny through their elected representatives? Is this what we want for our future? A few elites, accountable to no one, appointed for life, to rule us all in any manner they see fit?

Or, is it up to We the People to once again step up to the plate and demand what our Founders demanded from King George: that we continue to have the right, granted by God, to create our own destiny, free of the tyranny of the few and the unaccountable.

This is why we must support the ending of Judicial filibusters: because President Bush believes as I do: that it is up to the American People to determine the course of our lives, not to the tyranny of an unelected and unaccountable judiciary. And because the judges the President will be sending up to the Senate in the coming days believe that too.

Do the President's nominees deserve an up or down vote? Of course they do. And we as a nation and a society cannot afford to let a radical minority who do not believe in the vision of our founders to stop the President from exercising his sworn duty: ..."To preserve, protect, and defend the Constitution of the United States, so help me God."

In the name of all that is right and just, we cannot allow tyranny to re-assert itself in our great country, after fighting so long and so hard for the right and ability to govern ourselves. Because if we do, the results over time will almost certainly lead to the collapse of the most successful experiment that mankind has ever seen: an experiment that has walked the moon; an experiment that has freed hundreds of millions of people from despotism over the two centuries of our short history; and an experiment that is still the one that people in tiny dark corners all over the world secretly dream of someday joining. Because America is the great hope of the world; we come from a legacy of the very finest and freest individuals that humanity has known. We cannot fail the people who hold us up as a shining example of what they too can be and achieve; and we cannot fail our own countrymen over the decades and centuries who have fought and died for one thing: to preserve, protect and defend our Constitution.