April 2010
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And Speaking of Morons…

Associate Justice John Paul Stevens has announced his retirement from the Supreme Court. Known more for his dotage than his discernment, Stevens brought to the Court the same intellectual rigor that the man who appointed him, Jerry Ford, brought to the Presidency.

While the news commentators are stressing that a republican appointee will be replaced by a democrat appointee, that is only part of the problem. In order to understand the problem better, it’s important to understand what kind of jurist Stevens is. An excellent example can be found in New York v. U.S. (505 US 144)

The majority opinion was written by Sandra Day O’Connor, who lays out a surprisingly logical case for a “moderate” justice (more on that subject below), relying on the Federalist papers and their distinctions between the proposed government under the Constitution and the (then) existing government under the Articles of Confederation. Basically, O’Connor makes the case that the Federal government has powers over individuals that the National government did not have under the Articles, in exchange for which the Federal government had less power over the states. Under the principles of Federalism, the states retained certain areas of sovereignty, upon which the Federal government cannot encroach.

In response to this well researched and well documented reasoning, Stevens responds:

Under the Articles of Confederation, the Federal Government had the power to issue commands to the States. See Arts. VIII, IX. Because that indirect exercise of federal power proved ineffective, the Framers of the Constitution empowered the Federal Government to exercise legislative authority directly over individuals within the States, even though that direct authority constituted a greater intrusion on state sovereignty. Nothing in that history suggests that the Federal Government may not also impose its will upon the several States as it did under the Articles. The Constitution enhanced, rather than diminished, the power of the Federal Government. (emphasis added)

Steven’s argument is that the states have no sovereignty except that allowed by the Federal government, and, should Washington wish it, the states could be reduced to mere subdivisions of the Federal government, rendering them into prefectures under a national government. But, as Hamilton makes clear in Federalist 32: “…the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.”

Stevens continues:

The notion that Congress does not have the power to issue “a simple command to state governments to implement legislation enacted by Congress,” ante, at 176, is incorrect and unsound. There is no such limitation in the Constitution. The Tenth Amendment surely does not impose any limit on Congress’ exercise of the powers delegated to it by Article I.

Actually, that is exactly the intent of the Tenth Amendment. It is this kind of opinion that so endears justices like Stevens to the press. While the press makes distinctions among liberal, moderate, and conservative justices, what they really mean is that some justices pay attention to the framers while rendering decisions (conservatives), some ignore them utterly (like Stevens and the other liberals), and some pay heed occasionally (like O’Connor). The members of the press who understand the limitations of Federalism and constitutional government know that the progressive vision of a Utopian state is completely incompatible with the Constitution. In order to secure this vision, they paint the supreme court as a Delphic institution, rendering opinions that are incomprehensible to us mere mortals, but are for our own good. The best justices, in the eyes of the press, are those who couch their Utopian visions in legalistic aphorisms, without regard for the words of the framers.

With Stevens’ retirement, the court will be rid of a man whose utter indifference to the Constitution was evident in virtually all his opinions. While this is a good thing, I fear his indifference will be replaced with outright hostility, assuming that BHO selects another individual that reflects his own attitude toward the Constitution.

fiat lux!

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