Readers Write: Democrats trampling on the Constitution

The Island Now

I

 have always believed, that is up until recently, that America was a nation ruled by law, the cornerstone of which is our Constitution. 

To my profound disappointment, I recently found that it is not. 

I am not a lawyer. I write this as a layman with the justification that I do not need to be a solid state physicist to determine that the glass that I dropped on the tile floor is broken. 

Constructionist justices have commented that the Constitution was not intended as a complicated instrument requiring elaborate, if not creative interpretation by legal scholars, but rather, to be understood, as written, by a layman (like me). “Progressives” have hailed Holmes, Brandeis, Cardozo, et. al. as the great legal minds of the 20th century with buildings, and universities named in their honor. 

I have another view. Originating with Holmes, and Brandeis, the Constitution increasingly became a “living and breathing document” subject increasingly to interpretation, or shall we say willful and malicious misinterpretation. 

The final coup d’etat of constitutional law was “interest balancing.” 

This is the infrastructure that completed the progressive quest to destroy the constitution and replace rule by law with rule by “enlightened progressives.” 

There are apparently two major levels of scrutiny in interest balancing, “strict,” and “intermediate” (rational basis is applied mostly in instances where constitutional rights are not in question). 

Some more (heightened, etc) have been created. The most egregious of these is “intermediate scrutiny”, where “a compelling interest of the government for the general welfare” must be balanced against your constitutional rights. 

So your rights are no longer rights, but merely, interests that can be “burdened” by a “compelling interest” of the state. 

Read about some of these rulings under lowered scrutiny if you have a spare moment. Even within the application of that infrastructure, the compelling interest of the state is about as compelling as a sack of rotting cabbage. 

And how far can your rights be “burdened”? Well, as much as they say. What country is this? 

One example of this is the absolutely stunning decision by an appellate court in California upholding an edict by a school administration that loyal American students be forbidden from wearing American flag clothing on the fifth of May (“Cinco de Mayo”) because it would be offensive to other students who, by the way, have antipathy toward America and, obviously owe their loyalty to Mexico. 

How and why? 

The court applied intermediate scrutiny, “balancing” the 1st Amendment right, now demoted to an “interest” of the students to honor the flag, against a “compelling interest” of the school to avoid potential violence. 

Do you see that same court going the other way on the 4th of July? LOL! 

The words fraud and outrage are not sufficient here. Who conferred this power unto the court? They gave it to themselves! 

Progressives have a “study” (each one a bigger fraud than the last, from its inception to its publication) to justify command and control over every aspect of life, and thus, “a compelling interest.” 

After Harry Reid ended the filibuster, the administration has been appointing their Bolshevik apparachiks to the bench at an alarming rate. 

With the Stalinist menace Eric Holder as the A.G., this tragic combination approaches lawless despotism. 

Why even bother with the charade? 

It’s a new day in Amerika. 

Justice Sotomayor is at least honest in her openly racist and sexist characterization of herself as a “wise Latina” who could make better decisions than a white man. 

And what better than that she no longer has to follow the constitution. She admitted that as a judge, she “sets public policy”, as opposed to adjudicating the law. I do admire her honesty, if nothing else! Justice Ginsburg advises emerging nations not to adopt a constitution like ours, but rather, one that enumerates “positive rights” or entitlements as opposed to “negative rights” that limit the power of government in order to preserve freedom. 

You know, like the one from the old Soviet Union. Why does this matter? 

How about when the court upholds writs of attainder to kick down every door in some community because while there is a fourth amendment, drug use is a big social problem and they have a compelling interest to do so? 

How about “hate speech” or alien and sedition? Could there not be a great case for the government’s “compelling interest” to advance those? How about the suppression of evidence, witness tampering, and the impedance of prosecution when government agencies persecute American Citizens for their beliefs?

Oh sorry, that one is already happening. 

My favorite comment on interest balancing was made by the brilliant Justice Scalia where he described it as “trying to determine whether an object is heavier than a line is long.” 

The metric is impossible. It is correct to say that rights are not absolute. But in order to be rights, as opposed to interests they must be limited only by their exercise in such responsible manor as to not violate the rights of another. 

Not some nonsense that a bunch of criminals in Albany (and that is what they are) concocted behind closed doors in the dead of night and called a “compelling interest.” 

One’s right to keep and bear arms does not extend to taking target practice by shooting at the lights and signs on 42nd and Broadway, however, the prefatory clause, announcing the intent of the 2nd Amendment as a safeguard against tyranny would make an AR15 type rifle a minimum necessity for an effective militia of the people. “Well then why can’t you have a bazooka or hand grenades?” 

That is the knee-jerk progressive reaction. What is at issue here is not the maximum or upper limit, it is the minimum, or lower limit. 

Courts have applied intermediate scrutiny in second amendment cases, and upheld “assault weapon” bans, wrongfully citing that AWs are not needed in defense of “hearth and home as is central to the 2nd amendment.” 

Well, what happened to “the prefatory clause (well regulated militia) cannot be decoupled from the operative clause” (Heller)?  

Did it not announce, as the central purpose of 2A, as the American people to comprise an armed militia to respond to the emergence of tyranny (not the national guard which could just as easily as the federal army be misused to inflict tyranny. 

Some civil rights leaders will argue that history shows it has). Its central purpose, under this consideration could not even have been personal defense (although it certainly does not preclude it). How is this not clear?

The “general welfare clause” does not reign supreme over all the other articles and amendments enumerated in the constitution. 

One does not need to be a legal scholar to reason that if this were the case, no consideration of anything else would ever be or have ever been required. 

Carried to the extreme, a Hitlerian leader, hypothetically of course, could make the case that they have “studies” to show that the abc/xyz people are disproportionately involved in……… so while there is right to life, liberty and property, this must be balanced against a compelling interest to get rid of them. 

With a solid constitutional republic ruled by law and not judicial fiat, the rights of vanishingly small minorities are safeguarded against the tyranny of the majority. (This is as opposed to straight up majority rule that ended in the Nazi state emerging). 

And to all the fragmented groups who seem to have an allegiance to something other than the United States as defined by our beloved constitution (not our despot government) let me say this. 

The displacement of the tyranny of your enemies with your own tyranny does not make for justice or fairness. It is just more tyranny.

Emery Rose

Manhasset

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