E-Newsletter No. 79                       July 2020       

This is the fourth installment in a series of monthly newsletters that discuss our Editorial Board’s views on what is wrong with the federal government, and what we should do about it.

Article III of the US Constitution is where the duties and responsibilities of the Judiciary are laid out.  Article III states that… The Judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish…  The Judges, both of the supreme and inferior Courts, shall hold their offices during good Behaviour…  The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution…

In our review of the Federalist Papers, it is quite clear that the Framers of the Constitution intended to have the Judiciary be a co-equal branch of the government.  Each of the branches of government has a distinct role and set of responsibilities.  The courts’ responsibilities are to protect the Constitution, as it was written.  Judges who follow this line of thinking are called “originalists”.  Justices are not supposed to “Legislate from the Bench.”  Unfortunately, this happens from time to time, and this is our biggest complaint about the Supreme Court.  By not following the original intent of the Constitution as written, this has allowed each of the other pieces of the federal government (including the Judiciary) to expand outside its “box” (its constraints) established under the Constitution. 

Pretty much every expansion of the federal government that has occurred since our country’s founding is a “non-constitutional” expansion of the federal government, and a violation of the Tenth Amendment.

As mentioned above, the original intent of the Judiciary was to protect the Constitution as it was written.  Unfortunately in the past, certain Presidents, in collaboration with an amenable legislature, have enabled this expansion of the government.  Some of the worst examples of this expansion stem from a re-interpretation of the General Welfare Clause and the Commerce Clause. 

This leads to our second primary complaint – the “politicization” of the Supreme Court.  Instead of approving only those Justices who agree to adhere to the original constitution as written, Presidents will nominate potential Justices who might share their own political philosophy and agenda.  The worst examples of this occurred during the presidency of Franklin Delano Roosevelt, and there was a subsequent massive increase in the size and scope of the federal government.

This is also the reason why the process of nominating (and having the Senate confirm) Justices to the Supreme Court has become so contentious in recent years.  This fact, coupled with the fact that these are (currently) lifetime appointments is the cause of most of this “angst”.    

We put forward the following recommendations –

The Supreme Court should not be allowed to Legislate from the Bench.  The worst example of this occurred in 2015 when the Supreme Court ruled in the King v Burwell matter regarding Obamacare that the law written by the legislature regarding the state-operated health insurance exchanges was not the intent of the legislature.  In this particular case, the Court should have ruled – “This is what you wrote.  If that is not what you intended, then you need to fix this legislatively”.

We also make the following recommendation for Term Limits for the Judiciary for several reasons.  We believe there are many well-qualified individuals who can carry out these duties.  Our proposal would cap the length of service at either 25 years in a particular position, or until a maximum age of 80.  Federal judges in the “inferior” courts would be able to have a lengthy career as a federal judge, and if appropriate, finish their career on the Supreme Court until the age of 80.  Our country has a more than adequate pipeline of potential judges who can serve in these roles in the future.  How much this Term Limit proposal could help dampen the politicization of the judiciary is yet to be seen.

US Debt Clock – – June 1st – $77,993 per citizen / July 1st – $80.200