When SCOTUS Speaks, Beware Its Gifts
In Janus v. AFSCME, the Supreme Court of the United States (SCOTUS) decided that forcing government workers to pay union dues violated the constitutional provision that “Congress shall make no law … abridging the freedom of speech … ” In the opinion, the Court says:
Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.
Thanks to the First Amendment, one is permitted to question how the U.S. Supreme Court comes by the authority to apply to Illinois, or any other state a constitutional provision specifically intended to restrict the lawmaking power of the Congress of the United States.
On the face of it, the Tenth Amendment’s language distinguishes between the powers the Constitution delegates to the government of the United States and those it does not. All of the latter are “reserved to the states respectively and to the people.”
It’s logically irrational to suggest that the 14th Amendment’s “privileges and immunities” language applies to the states, respectively, or to the people when the First Amendment’s language aims to immunize both against U.S. government interference with the governmental powers left in their hands.
The combined effect of the language in the Constitution’s First and 10th Amendments leaves it to the State governments to wield the public lawmaking power to decide whether and to what extent it is necessary to abridge the freedom of speech. And it leaves in the hands of particular individuals or their various associations the private lawmaking power (at its root the literal meaning of the word privilege) to do so.
Thus, parents have the power to forbid cursing at the family dinner table, whatever the Berkeley radicals defend as “free speech.” The Council on American-Islamic relations has the power to prohibit disparagement of Muhammad and Jesus Christ at their meetings and conferences and so forth.
This also explains why other First Amendment prohibitions against congressional legislation (respecting an establishment of religion, for example) were not construed to prohibit state laws in respect of establishment.
The notion that the Constitution’s language aimed to implement some specious “separation of church and state” is simply irrational, given the fact that the Constitution derives from the Creator, pursuant to the “laws of nature and of nature’s God.”
Many conservatives rejoice because the SCOTUS’ Janus v. AFSCME opinion struck a blow against the unionization of public employees, which they see giving rise to many abusive practices. But we should also ponder the fact that it puts another nail in the coffin of 10th Amendment Federalism, which many conservatives (including me) would like to disinter from the premature burial ground opened and maintained by the SCOTUS’s smorgasbord approach to the Bill of Rights.
The justices feed judicial power with virtual “rights,” hunted out of the dark umbras and penumbras they purport to see in the Constitution’s enumeration of rights.
Meanwhile, shunning the Ninth Amendment, they tendentiously kill off the God-endowed rights retained by the people, in order to whip up a feast of Judicial edicts that fatten the U.S. government’s increasingly tyrannical accumulation of power.
The Court gets away with all of this because the Congress refuses to exert its Constitutional power to keep them within bounds. By a simple majority vote in both Houses, they could remove Justices who insist on killing rights the people irrefutably retain and fabricating rights neither God nor human reason can be construed to justify.
I wrote recently about the grammatical error that paralyzes Congress’ power to impeach and remove civil officers of the United States while barring them from future service. Instead, Congress supinely allows Court decisions to become entrenched precedents, even though they openly contradict the Constitution’s language.
But they refuse to consider the logic that requires discarding a grammatical misconstruction that has effectively deprived Congress of it Constitutionally singular ability to impeach and remove members of the other branches, subject to no check but the majority voice of the people in their States and Congressional districts.
Of course, if Congress asserted itself in this way, they would alert America’s voting citizens to the fact that they are supposed to be the ultimate arbiters of Constitutional differences — not the Courts and certainly not the self-serving special interests that control the elitist faction’s twin-party sham. Therein lies the proximate cause of Congress’ Constitutional decrepitude.
It’s the reason subordinate officials in the Executive Branch defy congressional subpoenas. It’s the reason the courts make bold to strike down laws arbitrarily or interfere with presidential orders deemed necessary to maintaining our nation’s sovereignty.
Contrary to Nancy Pelosi’s complaint, in the United States of America, elections are supposed to matter a great deal.
When the people decide its time to drain the swamp or sweep out the cobwebs, it’s supposed to happen in and through their representatives in Congress — not the bluster of would-be tyrants in the Executive or Judicial branches.
If the present GOP leadership in Congress were not, like the Democrats, enslaved to powerful, self-serving magnates of the elitist faction, they could make a start right now toward the effective use of Congress’ power to clean house in the U.S. Government. They would Impeach Rod Rosenstein and any other official who defies Congress’ investigative powers. Then, by simple majority vote in the Senate, they would remove them.
That won’t drain the entire swamp. But it would be a convincing start.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.