American Heathen®

What follows is my most recent post on a blog, “Don’t Hate/Debate”, wherein I’ve had an ongoing “debate” with one who fancies himself knowledgeable about the Constitution. Come join the “fun” if time and inclination permit.

I am well aware that , on occasion, the judiciary  has usurped the Constitution. However, their opportunity to do so is much more circumscribed than the Legislative or Executive branches, or that of individuals.  There are literally HUNDREDS of Billions of daily transactions among government agents, agencies and individuals, NONE of which are micro-managed by ( the red-herring, canard) the Supreme Court( or Sate Supreme Courts) “legislating from the bench”.  There are millions of cases handled annually by the State, local and federal judiciary where Constitutional issues NEVER arise, and where the Courts merely provide the forum for private litigants to resolve their controversies, and where the acts of the Legislative branches are brought to bear against individuals( corporations, partnerships, and other”fictional entities) by the Executive agents.

Out of ALL this litigation, approximately 8,000 litigants annually ask the US Sct to grant their Petitions for Review(Cert.). Out of this 8,000 do you know how many the modern Supreme Court customarily accepts for Review?

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About 80!

If it were the purpose and intent of the SCT to “legislate from the bench”, they decline to do so 99% of the time– a pretty ineffective method to impose their”politico-social-religious” agenda.

Further, many of those cases do NOT involve “judicial review” Federal or state legislative or judicial acts.

Moreover, when they do invoke “judicial review”( as in Heller[2008] and McDonald[2010]  wherein they found the acts of the Federal govt and State governments, respectively, had violated the 2nd Amendment rights of individuals to “keep and bear arms” within the privacy of their homes)they begin by PRESUMING the Act of the Legislature or the Executive IS Constitutional, and then use a rational basis test, a balancing test, or a compelling interest depending upon what the nature of the conflicting “interests” are.

On the issues we’ve been primarily discussing the SCT employs the “compelling interest” test, requiring the Government to prove that that which it wishes to do is of such a “COMPELLING NATURE” that a FUNDAMENTAL RIGHT of  the individual must yield. For example, both DC and Chicago argued their legislation banning , in essence, use and possession of handguns within one’s home. The Court said the government’s purported “compelling interest ” did NOT predominate over the 2nd.

The typical “judicial review” case heard by the SCT is one where an AUTONOMOUS INDEPENDENT INDIVIDUAL is asserting the Government has usurped the Constitution and violated the FUNDAMENTAL RIGHTS of that INDIVIDUAL.

Judging from your position on fundamental rights, and “absolute” rights, I am puzzled that your dogma overrides your FUNDAMENTAL interest in preventing any government from infringing your right without effective recourse.

Apparently, as I noted above, you think self-help( via the 2nd with a shoot out with the usurpers), or languishing in jail or prison , or being deprived of your property, until the political process changes the law in your favor is preferred and more effective than that which I propose and which has been in place since before 1788.

Consider this(from an actual case, modified for my purpose here): A state  or local Government makes it “illegal to dance, or organize  a dance on Saturday, punishable by up to one year in jail”(the actual case banned Sunday dancing). A person, we’ll call Joseph McKee, of Dillis, organizes  a Bar Mitzvah for his 13-year-old son, which was held after sunset on Saturday in  Joseph’s home. Neighbors, offended by the loud noise, celebration, and DANCING calls the cops. The cops observe actual dancing , and asks who organized this.Joseph being a g_d feraing and honest man ,  says,  “I did”. He is arrested and sentenced to jail for one year.

By Joel Mckey’s  Constitutional viewpoint Joseph  McKee must languish in jail for that year UNLESS his friends, family and political Allies can change the Law and make if effective RETROACTIVELY prior to Joseph’s arrest, or UNLESS he can get the Executive Branch to commute his sentence, or grant him a full Pardon.

By Joel Price’s Constitutional viewpoint( and the one that has actually existed in the USA since at least 1803) Joseph McKee would have the constitutional right to argue at the first tribunal, “This “no dance on Saturday ” law violates my FUNDAMENTAL Constitutional right  of Freedom of Religion, my right of free expression,my right to be secure in my home against warrantless and unreasonable search and seizure, my right to equal protection, my right to due process, etc”. And if the judge agreed with Joseph— NO jail and vindication of his constitutional rights. If the trial judge disagreed with Joseph he could appeal to the State Court of appeals, and if rebuffed their appeal to the State Supreme Court–all while remaining  FREE on BOND(and while his allies van work to change the law)…and if rebuffed there go thru the Federal Court process and(with certain limitations) remaining FREE~~~and hope(and pray to YHVH) that Joseph’s case will be one of the 80 for whom annually Cert is granted~~~and hope(and pray to YHVH) that, using”judicial review”, the SCT would say ALL of Joseph’s FUNDAMENTAL constitutional Rights outweigh the power of the government to regulate the time and place of dancing in its communities.

Or–Joseph can just languish in jail–for celebrating at his own home his son’s bar mitzvah and joyously dancing–because Joel McKey eschews a centuries old process which permits anyone to petition a court to say the government has overstepped its authority.