Is Brett Kavanaugh a bad choice by President Trump?


#1

I wonder why Trump picked Brett Kavanaugh for his Supreme Court nominee who is favored by many of our Washington Swamp Creatures.

I could be wrong but I am not convinced Brett Kavanaugh will be obedient to and enforce legislative intent. Instead, he will give way to existing judicial tyranny when writing his opinions which means existing perversions of our Constitution will prevail over the text and legislative intent of our Constitution.

Time will tell.

JWK


“If the Constitution was ratified under the belief, sedulously propagated on all sides, that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?”___ Justice Story


#2

From what I’ve seen, it’s hard to predict what a SCOTUS Judge will do once seated. At least those that are nominated from the right. This is what happens when you don’t use idealogical litmus tests, and instead look for someone who “goes by the letter of the law.” To pretend that someone’s personal beliefs won’t play into their decisions is a fantasy.

In short, I expect to be dissappointed.


#3

Bush had a pretty stellar record when it came to Judicial Appointments at all levels, I think his only “miss” was Roberts but that was a big one since it was for Chief Justice of the Supreme Court.

My point is that Bush likes this pick and he knows Kavanaugh very well. Trump used Bush’s list last time and I have no problem with that.


#4

I am a little unsettled here.

At first, I thought it was a good pick.

Now I’m not so sure.


#5

Well put. Concur.


#6

Why?

He’s off on third-party information and the Fourth Amendment, which is incredibly important, but I think he’s pretty good on a lot more.


#7

Good point.


#8

There is nothing sacrosanct about SCOTUS “precedents.” Dred Scott was wrongly decided. Plessy was wrongly decided. Kelo was wrongly decided and Roe was wrongly decided. For the last 150 years, SCOTUS has routinely IGNORED the 10th Amendment as if it doesn’t exist and piled one federal mandate after another on the American people without a single rationale for doing so.


#9

And the two big ones: Helvering v. Davis” and Steward Machine Co. case upholding the Social Security Act were wrongly decided.

The Majority Opinion stated:


“Congress may spend money in aid of the ‘general welfare.’ Constitution, art. 1, 8; United States v. Butler, … There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision. United States v. Butler, supra. The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents”

What is significant is, the court cited the Butler decision decided the previous year and goes on to assert Hamilton’s view concerning the phrase “general welfare” prevails over that of Madison, and it will not “resurrect the contest”. In other words, the Court refused to follow a fundamental rule of constitutional construction and review the historical record during the framing and ratification debates of our Constitution to document the meaning of “general welfare” as it was understood during the framing and ratification debates. Instead, it was very eager to use something Hamilton wrote years after the Constitution had been adopted concerning the phrase “general welfare” in order to uphold the socialist/progressive Social Security Act as being constitutional.

But, what is not pointed out by the Court is the Hamilton “view” which the Court relied upon was not made during the framing and ratification debates of our Constitution. It was made after the Constitution had been ratified when Hamilton was Secretary of the Treasury, and was made to gain support for appropriating revenue from the federal treasury to be used to encourage specific manufactures.

In his report on Manufactures, Hamilton writes with reference to the meaning of the phrase “general welfare” and Article 1, Section 8, Clause 1, See Page 136

“These three qualifications excepted, the power to raise money is plenary and indefinite, and the objects to which it may be appropriated, are providing for the common defense and general welfare. The terms “general welfare” were doubtless intended to signify more than was expressed or imported in those which preceded: otherwise, numerous exigencies incident to the affairs of a nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union to appropriate its revenues should have been restricted within narrower limits than the “general welfare;” and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.”

But that is in direct conflict with what Hamilton wrote in Federalist No. 83, which was written to explain the meaning of the Constitution, Hamilton, in crystal clear language, refers to a “specification of particulars” which he goes on to say “evidently excludes all pretension to a general legislative authority“.

This view expressed by Hamilton in the Federalist Papers during the framing and ratification debates is also in harmony with what Madison states during the framing and ratification debates.

Madison, in No. 41 Federalist, explaining the meaning of the general welfare clause to gain the approval of the proposed constitution, states the following:


"It has been urged and echoed, that the power “to lay and collect taxes…to pay the debts, and provide for the common defense and the general welfare of the United States amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor [the anti federalists] for objections, than their stooping to such a misconstruction…But what color can this objection have, when a specification of the object alluded to by these general terms immediately follows, and is not ever separated by a longer pause than a semicolon?..For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power…But the idea of an enumeration of particulars which neither explain nor qualify the general meaning…is an absurdity.”

Likewise, in the Virginia ratification Convention Madison explains the general welfare phrase in the following manner so as to gain ratification of the constitution: “the powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.”[3 Elliots 95]
Also see Nicholas, 3 Elliot 443 regarding the general welfare clause, which he pointed out “was united, not to the general power of legislation, but to the particular power of laying and collecting taxes…”

Similarly , George Mason, in the Virginia ratification Convention informs the convention

“The Congress should have power to provide for the general welfare of the Union, I grant. But I wish a clause in the Constitution, with respect to all powers which are not granted, that they are retained by the states. Otherwise the power of providing for the general welfare may be perverted to its destruction.”. [3 Elliots 442]

For this very reason the Tenth Amendment was quickly ratified to intentionally put to rest any question whatsoever regarding the general welfare clause and thereby cut off the pretext to allow Congress to extended its powers via the wording provide for the “general welfare“.

JWK


The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it.
_____HOME BLDG. & LOAN ASS’N v. BLAISDELL, 290 U.S. 398 (1934)


#10

Gah, that Hamilton, still causing problems. Scum-sucking Federalists.


#11

Kavanaugh has one of the most extensive judicial records (over 300 decisions from the federal bench) of anyone ever appointed to Supreme Court Justice.

From his record, he appears to strongly favor a constructionist application of the constitution - perhaps certain aspects pertaining to FISA notwithstanding… I would rather see Trump appoint someone with a long record, such as Kavanaugh, as opposed to someone with a short judicial resume.

That said, one can only predict his future approach, not guarantee it.

The only obedience I want from a Supreme is obedience to the plain language of the constitution in the application of the law. There is no perfect appointee - IMHO, Scalia came closer to perfection than anyone else in my lifetime.


#12

No. It was not Hamilton causing the problem. It was Justice CARDOZO who ignored a fundamental rule of constitutional construction when he relied upon what Hamilton wrote years after the Constitution had been adopted to determine the meaning of “general welfare”, and he ignored what Hamilton stated during the framing and ratification debates which contradicted what he stated years later. .

With regard to the meaning of language found in our Constitution see:

16 Am Jur 2d Constitutional law
Meaning of Language
Ordinary meaning, generally

”Words or terms used in a constitution, being dependent on ratification by the people voting upon it, must be understood in the sense most obvious to the common understanding at the time of its adoption…”__ (my emphasis)

Also see Par. 88–Proceedings of conventions and debates.

Under the principle that a judicial tribunal, in interpreting ambiguous provisions, may have recourse to contemporaneous interpretations so as to determine the intention of the framers of the constitution, the rule is well established that in the construction of a constitution, recourse may be had to proceedings in the convention which drafted the instrument. (numerous citations omitted )

and par. 89-- The Federalist and other contemporary writings“ Under the rule that contemporaneous construction may be referred to it is an accepted principle that in the interpretation of the Constitution of the United States recourse may be had to the Federalist since the papers included in that work were the handiwork of three eminent statesmen, two of whom had been members of the convention which framed the Constitution. Accordingly, frequent references have been made to these papers in opinions considering constitutional questions and they have sometimes been accorded considerable weight.” (numerous citations omitted )

JWK


The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it.
_____HOME BLDG. & LOAN ASS’N v. BLAISDELL, 290 U.S. 398 (1934)


#13

True. Take the word “regulate.” In the late 18th Century, the term meant to “make regular, or even.” It did NOT mean to “control” as it’s come to mean today. Therefore, the term “well-regulated” as used in the 2nd Amendment’s introductory phrase did not mean that a militia should be “well-CONTROLLED”. It meant militia’s should be made regular or even–in equipment, ammunition, tactics or arms, for example.