Sunday, February 13, 2011

Of Penumbras and Führerprinzip, or How William O. Douglas Established American Nazism

The concept of a "living Constitution" is dictatorial. That it has gained currency in the US Supreme Court is evidence that the Court's authority needs to be truncated.  The Constitution does not give the Court the right to decide on the constitutionality of laws.  This is what the Constitutions says in Article III, section 2 about the Supreme Court's powers:

>The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State,--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

This does not say that the Supreme Court has the power to declare a law unconstitutional.  Rather, it says that the Court has the power to adjudicate cases UNDER the Constitution AND the laws.  In the Federalist No. 78 Hamilton argued that courts had the right to INTERPRET and LIMIT statutory authority:

"It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts."

The Constitution does NOT give the Court this power, but Chief Justice John Marshall arrogated it anyway in Marbury v. Madison.   But judicial interpretation, even if granted, does NOT give the Court any authority to invent new interpretations in constitutional "penumbras" or "emanations" as Justice William O. Douglas put it in Griswold v. Connecticut.  The decision to regulate contraceptives is a state level one, not a federal level one.  The distinction is critical because the Court has used this case to arrogate ever more extreme degrees of power to itself.  In this, it has gradually become a dictatorial power.

The Constitution is clear that legislation is the province of Congress. It is also clear that there is a method to change the Constitution via amendment.  Therefore, there is no need for the Supreme Court to do more than INTERPRET existing law. 

During his National Socialist rule Hitler declared that he was the ultimate source of legitimacy in Germany, which he called the leader principle or Führerprinzip.  Under the leader principle all legal, social and economic decision making ultimately rested with him.  In a similar manner, the Supreme Court claims a Führerprinzip to legislate new laws and decide on old ones, which it calls "legal emanations" or the "living Constitution."  This is an outrageous and illegal arrogation of power, and it needs to be stopped. The Constitution is specific. The Court can adjudicate cases, nothing more.  It is believable that it is necessary for the Court to have the power to interpret constitutionality and to limit legislative authority. But that is all.  The living constitution evolves through amendment, not through William O. Douglas's Führerprinzip.

If the justices are self-serving pigs who cannot stop themselves from arrogating power, the American legal system has failed and it is time to reinvent it, perhaps basing a new statutory system on traditional common law.


Anonymous said...

So you do believe in the original intent of the Constitution?

Mitchell Langbert said...

The Constitution was a success until the Progressive era. But I think the nation would have been better off with a more decentralized system. The South should have been able to secede and nullify laws.

Anonymous said...

You did not answer the question.

Mitchell Langbert said...

Your question is too vague to answer specifically. There are a hundred interpretations of what the original intent of the constitution was, ranging from those like Charles Beard who say it was meant to serve mercantile interests (which is believable) to those who say it was meant to define African slaves as three fifths of a man. Which intent do you want to know about?

Lady Liberty said...

We all want Obama out of the White House, and there is no Republican nominee who can beat Obama. Except Paul. The only way to beat Obama is to steal his votes, and the only who who will do that is Paul. Obama only won the election because he got the Independent vote- it was anyone other than McCain/Palin. Independents and Democrats alike love Paul.
This is a serious situation. We can't just wait until 2016 when any old Republican is a shoe in. I fear the economy- and the dollar- will not last that long. It's time we stop worrying about the reputation of the Republican party (who will be their puppet) and start worrying about the future of this country.
Please, don't give up on Ron Paul. Reconsider what you think you know about him- the media has not done a fair job. He was completely ignored in the 08 election.

"Ron Paul is one of the outstanding leaders fighting for a stronger national defense. As a former Air Force officer, he knows well the needs of our armed forces, and he always puts them first. We need to keep him fighting for our country."
-Ronald Reagan

Doug Plumb said...

Our main problem is that the legal profession has a monopoly on the law and few of us outside that arena know anything about the law.

This is just a consequence of the age of specialization, but in this case a very dangerous one. The law can only protect those who understand it, this is particularly true in the existing Western system which is adversarial in nature.

What is law and what is legal are two different things. The legal system is a result of the 14th amendment and freedom of contract. Those in the law profession are free to impose a tyranny with the banksters if we don't say no.

The world is and always has been both a lawful place and the highest authority has always been the law, and now in the age of specialization, those in the law profession.

Our problems do not ultimately lie with economics, they lie with law, and the people will perish for lack of knowledge.