If any formal confirmation dialogue between a U.S. senator and U.S. Supreme Court nominee was poignantly confined to questions regarding judicial activism and the potential power of the U.S. Supreme Court to declare constitutional an issue not enumerated under the specific powers of the federal government under Article 1, Section 8 of the U.S. Constitution, it was the exchange between South Carolina U.S. Senator Lindsey Graham and U.S. Supreme Court Nominee Judge Brett Kavanaugh on Thursday, September 6, 2018. Senator Graham had pointedly asked Judge Kavanaugh if the U.S. Supreme Court had the power to declare a previously legislated federal law or a previously confirmed U.S. Supreme Court precedent unconstitutional if the law or practice originally declared constitutional wasn’t predicated on a law or case arising under the U.S. Constitution. On Judge Kavanaugh defensively hedging a bit on the question, Senator Graham then cited the precedential case stating the basis for the consideration of the historical context of a matter, such as abortion, being considered by the High Court in order to determine proper federal jurisdiction over the particular matter. In other words, the question was, “may the Supreme Court claim federal jurisdiction over a matter that was, until 1973, historically left to the individual States to judicially determine as proper or improper?” Kavanaugh followed by refusing to answer this question, and only stating that he, and the Court intended to follow precedent, embellishing the point that Roe v. Wade, 1973 was established law. Pointedly, Senator Graham pursued the hypothetical question that needed to be asked and answered by Judge Kavanaugh, which was, “If the Supreme Court can use the amorphous liberty clause of the Preamble to the U.S. Constitution to declare abortion a constitutional right afforded to women, despite the fact that abortion is not mentioned in the U.S. Constitution as a right afforded to women, what social or civil issue can the U.S. Supreme Court not declare power over in order to assert federal jurisdiction?” In reply, Kavanaugh only stated that precedent would consistently preside in High Court rulings.
The fundamentally provocative problem that exists in Judge Kavanaugh’s statements about strictly following precedent is that if the U.S. Supreme Court can hear and decide appellate cases that do not originally arise under the U.S. Constitution or the laws of the United States, but, rather, under the whims of five-or-more Supreme Court justices, such as abortion, education, and, especially, civil rights (which was flippantly declared under federal jurisdiction per the power of the Commerce Clause of Article 1, Section 8), over what issues can’t the U.S. Supreme Court declare jurisdiction? For instance, could, hypothetically, the U.S. Supreme Court declare federal jurisdiction over the birthing of children in the fifty States, as it has declared jurisdiction over abortion of viable fetuses in the States to ultimately rule that all pregnant women in the USA will only birth their children in federally approved hospitals, or could they, hypothetically, issue an edict that, in order to control the kidnapping of neonates, all new-born infants in those hospitals will have RFID chips implanted into their bodies shortly after they are born? This, of course, would be the height of austere unenforceable judicial legislation, but would it be possible, if not probable, following the precedent of Roe v. Wade, 1973? If the issues of homosexuality and homosexual marriage (historically State judicial matters) can be declared under federal jurisdiction according to the whimsical voting of five-or-more U.S. Supreme Court justices, why couldn’t bestiality, fetishism, polygamy, and polyandry also be declared under federal jurisdiction by an equally whimsical vote based upon precedent?
During the exchanges between Graham and Kavanaugh, the 10th Amendment of the Bill of Rights was never mentioned. Why it wasn’t mentioned, I do not know; but it should have been mentioned and invoked several times, especially by Senator Graham. You see, the 10th Amendment is as important for the liberty of the People of the USA as is the 1st Amendment, if not more important, because it completely and specifically delineates the Constitutional federal-State separation of powers by unequivocally stating that “the powers not delegated to the United States (federal government) by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People.” What this means is simply that all issues (social, educational, political, economic, financial, and medical, etc.) not falling under the specifically delegated powers of the federal government in Article 1, Section 8 of the Constitution, are to be determined and decided by the respective State governments. Historically, this 10th Amendment was tragically spurned by the Republican U.S. representatives and senators of the Northern congress in 1865, before, and after, the North was victorious over the Confederacy during the American Civil War. In despising the Constitutional 10th Amendment right claimed by the States to determine the status of slavery (not subsumed under any federal power), the Northern Congress legislated the 14th Amendment and its Equal Protection Clause to subjugate the irrevocable 10th Amendment of the Bill of Rights, and coerced the Southern States of the defeated Confederacy to ratify it, threatening military reconstruction dictatorship if they refused. Senator Graham should have asked Kavanaugh whether the 10th Amendment currently presides over the determined delineation of the federal-State separation of powers? To this yes, or no, question, Kavanaugh could not have answered anything regarding precedent.
Confirmation by the U.S. Senate of a U.S. Supreme Court nominee claiming to be a constructionist, or one honoring the original Constitutional intent of the Framers, should mean asking the questions that will evoke from the nominee answers that will truly reveal whether he, or she, will assert the jurisdiction of the High Court over appellate cases that have “not” arisen under the U.S. Constitution or the laws of the United States, though adjudicated originally in federal district courts when those courts had no original jurisdiction over the cases at bar. A U.S. Supreme Court justice’s honor and assertive willingness to openly and publicly declare that the U.S. Supreme Court, or any federal court, has no “right” to determine a issue over which the federal government has no jurisdictional power is much more profound than his dishonorable conformity to the will of a majority of nine human jurists.
For the American republic to be truly ruled by the People through their representatives in Congress and the White House, the voice of the electorate, who vote to place those representatives in Washington, DC, must be heard loudly by those representatives. Every day of every year, every American citizen eligible to vote in national elections should rise from his bed in the morning to question what his representatives are doing in Washington, DC to follow the stated purpose of the U.S. Constitution, which is “to ensure the blessings of liberty to the posterity of the Framers who created the U.S. Constitution and of People who ratified it in 1789.” As Antony Sutton, D.Sci. has, in paraphrase, stated, “the liberty of the People of the United States is a fragile substance that can be quickly diminished through the conspiratorial actions of deceitfully powerful men and women who seek to further their corrupt power by economically and governmentally subjugating the less-powerful to their will.”
And as Thomas Paine wrote in 1775, in his “Common Sense,” “Awaken to the pains of tyranny and the denial of liberty by the hands of despots.” One must remember that the U.S. Supreme Court, five of nine justices, does not rule the USA. WE are a nation of properly legislated federal laws, legislated under the specific powers delegated to the federal government, and not under the whims of flippant and self-righteous federal politicians.
Norton R. Nowlin holds M.A. and B.A. degrees from the University of Texas at Tyler plus one year of law school at Thomas Jefferson School of Law, in San Diego, California. He also holds an ABA-approved paralegal certification from Edmonds Community College, in Lynnwood, Washington, and is a 1985 graduate of the 72nd San Diego County Sheriff’s Academy, at Southwestern College in Chula Vista, California, and worked professionally as a California peace officer.