QUESTION: What is a Supreme Court Justice’s fundamental job?


#1

ANSWER: The primary function of a Supreme Court Justice is to be obedient to the text of our Constitution, and give effect to its documented legislative intent which gives context to its text.

JWK

Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.


#2

I was always taught that the Supreme Court Justice’s fundamental job is to determine if certain issues or questions of new laws are constitutional. Period.


#3

I won’t disagree with that but our Constitution states in crystal clear language a Supreme Courts fundamental duty is to support “this Constitution”. The Constitution also commands them to adhere to “the rules of the common law”.

QUESTION: What is the most fundamental rule “of the common law”?

JWK


#4

Isn’t that what I said? If I remember correctly, and there is every reason to believe I don’t, property rights have always been the number 1 fundamental common law.


#5

Yes. And that is why I said I won’t disagree with that.

True! Rights associated with property ownership fall within “common law”. But there is a distinction between “common law” and “the rules of the common law” which is mentioned in our Constitution.

Under the rules of the common law, which involve procedure, being obedient to and enforcing legislative intent is a primary rule under the rules of the common law.

In a newspaper article published in the Alexandria Gazette, July 2, 1819, Chief Justice Marshall asserted he could “cite from [the common law] the most complete evidence that the intention is the most sacred rule of interpretation.”

It should also be pointed out that the notable Justice Story, in his Commentaries on the Constitution of the United States (1833) wrote: “The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties.”

And let us not forget that our very own Supreme Court, in Hawaii v. Mankichi, 190 U.S. 197 (1903), confirms enforcing legislative intent is a priority of the Court:

”But there is another question underlying this and all other rules for the interpretation of statutes, and that is what was the intention of the legislative body? Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the lawmaking power will prevail even against the letter of the statute; or, as tersely expressed by Mr. Justice Swayne in 90 U.S. 380 :

“A thing may be within the letter of a statute and not within its meaning, and within its meaning, though not within its letter. The intention of the lawmaker is the law.”

This very rule concerning legislative intent is also stated by Jefferson in the following words:

“On every question of construction [of the Constitution], carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”–Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

And the noteworthy Chancellor James Kent, in his Commentaries on American Law [1858] confirms the truth of the matter as follows:

"The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void.

In fact, being obedient to the documented legislative intent of our Constitution was acknowledged in HOME BLDG. & LOAN ASSOCIATION v. BLAISDELL, 290 U.S. 398 (1934) in the following words:

”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.”

And this brings us back to the question: What is a Supreme Court Justice’s fundamental job?_ Succinctly stated, the primary function of a Supreme Court Justice is to be obedient to the text of our Constitution, and give effect to its documented legislative intent which gives context to its text.

JWK

Those who reject abiding by the intentions and beliefs under which our Constitution was agree to, as those intentions and beliefs may be documented from historical records, wish to remove the anchor and rudder of our constitutional system so they may then be free to “interpret” the Constitution to mean whatever they wish it to mean.


#6

I must be honest and tell you that I got lost in all the verbiage. I do agree with the last bolded text. It seems that there are many in this country who think that the Constitution is an outdated historical document and should be changed…according to their own interpretations. All I can say to this is it takes a real blowhard to even entertain such a position.


#7

In regard to my last post and its length __ most of which was documentation __ my aim was to establish the primary function of our judges and Justices’ as stated by acknowledged authorities.

As to the rest of your response, and “blowhards”, we seem to agree. Those who object to Supreme Court rulings because of their personal feelings and desires, and criticize specific judges and Justices based on these grounds [their personal feelings and desires], are the very type of people our Constitution was designed to protect us from.

By contrast, those who support and defend our constitutionally limited system, only object to Supreme Court opinions when they are not in harmony with the text of our Constitution and its documented legislative intent, which gives context to its text.

And that is why we must never forget what a judge and Justice’s fundamental job is, which is “. . . to be obedient to the text of our Constitution, and give effect to its documented legislative intent which gives context to its text.”

JWK


John Adams was absolutely correct when he pointed out that “democracy will envy all, contend with all, endeavor to pull down all; and when by chance it happens to get the upper hand for a short time, it will be revengeful, bloody, and cruel…”.
Witness today the suicidal path our democrat socialists have chosen to take, supported by a Fifth Colum media and Yellow Journalists


#8

The only “Intent” that the Supreme Court is responsible to respect is the original intent of the those who wrote and ratified the Constitution and those who wrote and ratified amendments that have followed.

There is no charge or justification for the Supreme Court to consider the “Intent” of modern Lawmakers who have the Constitutionality of their Laws challenged, only the text of their Law should be used as the basis of deciding whether it is Constitutional or not.

Which is what Jefferson was saying in the previous quote but some others seem to be saying that the “intent” of the current Lawmakers can be used to uphold a new Law even if the text of the new Law is not Constitutional.

Robert’s did this to save Obamacare and he deserves to be impeached and imprisoned as a Traitor for this crime.


#9

As I started reading your post, I began to form the same conclusion, RET. The case that immediately came to mind was Roberts’ traitorous, unilateral changing of the actual WORDING of Obamacare in order to MAKE it seem to be “Constitutional” because he didn’t believe it was SCOTUS’ job to thwart Congressional “intent.”

Just IMAGINE all of the things that Congress has taken authority over in literal DEFIANCE of the original intent of those who wrote and ratified the Constitution.

Education
Environment
Housing
Law enforcement
Agriculture
Medicine
Insurance
Transportation
Workplace safety
Electrical Energy production
Atomic energy
Mining
Unionization
Abortion
Firearm regulation

I suspect that the founders have been spinning in their respective graves for AT LEAST the last 100 years.


#10

One, PRIME example is the MISinterpretation by the courts of the 14th Amendment’s reference to citizenship. It was INTENDED by the drafters, to apply to ex-slaves and their offspring. It was NEVER intended to apply to any child of foreigners who happened to give birth on U.S. soil. Foreign “tourists”, legal or illegal, are NOT “subject to the jurisdiction” of the State in which they find themselves. They are subject to the jurisdiction of their HOME COUNTRY. The courts have just recently held that foreigners are NOT entitled to the same rights and privileges of American citizens which should negate the “citizenship” of every “anchor-baby.”


#11

Problem: the text of the Constitution now conflicts because of the Progressive amendments.

Leaving Justices split on whether the amendment, or the original intent should take precedence. Or whether you read said amendment as having far reaching effects, or in a limited fashion.


#12

You are spot on when considering our Constitution specifically commands judges and Justices to support and defend “this Constitution” and goes on command that judges and Justices are to be obedient to “the rules of the common law” ___ the most fundament rule being and adherence to legislative intent!

JWK

"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges’ views of fairness, reasonableness, or justice." – Justice Hugo L. Black ( U.S. Supreme Court Justice, 1886 - 1971) Source: Lecture, Columbia University, 1968


#13

Give it a brake AS. There is no conflict. Our Constitution has an amendment process which allows for change, and judges and Justices are required to enforce the text of such changes and their documented legislative intent which gives context to those changes.

The only “conflict” which occurs is when judges and Justices ignore the legislative intent of our Constitution and impose their personal whims and fancies as the rule of law.

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)


#14

I agree!

Various tyrannical usurpations of power, presumptively allowed under the text of the 14th Amendment, confirms the absolute necessity of being obedient to “the rules of the common law” which requires the legislative intent of the 14th Amendment to be followed, and not the whims and fancies of our judges and Justices.

Another egregious example of a tyrannical and usurpation of power upheld by the Court was the Social Security Act in which the written opinion intentionally refused to apply the meaning of “general welfare” as it was understood during the framing and ratification debates giving rise to our Constitution.

In these cases Helvering v. Davis” and Steward Machine Co. case the Court 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“.

In fact, the Court relying upon words spoken after the Constitution had been adopted to determine the meaning of general welfare, and ignoring the meaning of “general welfare” as understood during the framing and ratification debates, violated “the rules of the common law” as applied to discovering the meaning of general welfare as understood during the framing and ratification debates. And this is how our Fifth Column judges and Justices use their power to impose their personal whims and fancies as the rule of law and ignore our Constitution.

JWK

"The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power contrary to the true intent and meaning of the Constitution, is absolutely null and void. ___ Chancellor James Kent, in his Commentaries on American Law (1858)


#15

The 14th Amendment is a quagmire. It was hastily put together by radical Republicans to make their Reconstruction Acts pass Constitutional muster. Unlike the Bill of Rights, it was not meant to limit big government it was to expand it. There are legitimate arguments that it is not actually a valid part of the Constitution.

439 P.2d 266

South Carolina Law Quarterly Volume 11 - [1959] Pages 484 - 519

As Thurgood Marshall said:

While the Union survived the civil war, the Constitution did not.

http://thurgoodmarshall.com/the-bicentennial-speech/

PS The link 439 P.2d 266 starts off as a argument over a habeas corpus writ. The relevant portions start a few pages into the document.


#16

As one who has actually read and studied the debates of the 39th Congress which framed and helped to ratify the 14th Amendment, its documented legislative intent is pretty straight forward and confirms it is very limited in its delegation of legislative power, e.g., see a summary of the amendment as stated by one of its supporters:

“Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery…It permits the States to say that the wife may not testify, sue or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of the enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality…It does not prohibit you from discriminating between citizens of the same race, or of different races, as to what their rights to testify, to inherit &c. shall be. But if you do discriminate, it must not be on account of race, color or former conditions of slavery. That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel. Self-evidently this is the whole effect of this first section. It secures-not to all citizens, but to all races as races who are citizens- equality of protection in those enumerated civil rights which the States may deem proper to confer upon any race.” ___ SEE: Representative Shallabarger, Congressional Globe, 1866, page 1293

In regard to the text of 14th Amendment, it declares in crystal clear language:

”All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

As we can see from the language of the 14th Amendment it:

  1. Makes ”All persons born or naturalized in the United States, and subject to the jurisdiction thereof” … citizens of the United States and of the State wherein they reside.”

The amendment then goes on to declare:

  1. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This wording forbids every State from abridging a United States citizen’s “privileges or immunities” which a State has adopted under law. Note that this wording does not forbid a State to deny “privileges or immunities” to “persons” who may not be “citizens of the United States”! Nor does the wording declare what “privileges or immunities” a state may or may not adopt.

The amendment then continues with:

  1. “… nor shall any State deprive any person of life, liberty, or property, without due process of law…”

This wording applies to “any person” as opposed to “citizens of the United States” and It expressly forbids every State to deprive any “person [within its jurisdiction] of life, liberty, or property without due process of” a State’s laws. Due process of law refers to procedure and the administration of justice in accordance with established rules and principles.

The first section of the Amendment then concludes with:

  1. ”…nor deny to any person within its jurisdiction the equal protection of the laws.”

This wording simply commands that whatever a State’s laws are, a person within that State’s jurisdiction may not be denied the equal protection of those laws. Keep in mind the wording does not forbid a state to make distinctions in law, e.g., based upon sex or age, but whatever laws are adopted by a State, the State may not deny to any person within its jurisdiction the equal protection of those specific laws.

JWK


#17

Thomas and Scalia had such a disagreement in the 1995 McIntyre vs Ohio Elections Commission case.

One trotted out the 14th ammendment as justification for why States can’t do this, the other vouched for originalism, and how things like this should be a Federalism issue.

So yes, there is conflict.


#18

No, there is no conflict when both the text of our Constitution and it’s legislative intent is followed.

What is missed in the case and causes the conflict is the wrong headed notion that the 14th Amendment made the first ten amendments, and in particularly the First Amendment, enforceable upon the states by the federal government.

The fact is, Ohio has its own State Constitution and bill of rights. And the case should never have found its way into the United States Supreme Court.

Under Ohio’s Bill of Rights, we find:

I.11 Freedom of speech; of the press; of libels (1851)

Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. In all criminal prosecutions for libel, the truth may be given in evidence to the jury, and if it shall appear to the jury, that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted.

JWK


#19

Spot on, John. There is a big difference between “Congress shall make no law…” and “the right of The People…”.


#20

If it’s in the Constitution, it is part of the Constitution.