A Constitutional “Litmus Test” for Judicial Nominees

With all the ballyhoo in Washington and the big media over nominations to the Supreme Court, it dawned on me that, if I were a Senator, I should ask but one question: whether the nominee is philosophically a Bolshevik.

Judicial Nominees
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Last Updated on October 6, 2021 by Constitutional Militia

With all the ballyhoo in Washington and the big media over nominations to the Supreme Court, it dawned on me that, if I were a Senator, I should ask but one question: whether the nominee is philosophically a Bolshevik.

This is neither a jest nor an exaggeration. For anyone who pays attention to recent decisions of the Supreme Court realizes that many of the Justices have, wittingly or unwittingly, ingested the fundamental teachings of Marxism-Leninism in their formation in law schools and their careers in the legal profession, and are now regurgitating these pernicious precepts in their opinions.

(1) The first of these teachings is THE VANGUARD OF THE PROLETARIAT. This is the notion that a small, select group is destined, perforce of historical or economic determinism or some other mystical power, to lead the rest of society towards “progress” and “perfection.” Such thinking is the very apex of elitism: “The vanguard” always knows better than “the masses.” Indeed, “the vanguard” imagines itself as appointed to rule, not only in the name of the masses, but in the place of the masses, over the masses, and against the will of the masses.

In the constitutional context, “the vanguard of the proletariat” doctrine means that We the People no longer “ordain and establish this Constitution,” as the Constitution itself proclaims in its Preamble. And We the People no longer control the interpretation and application of the Constitution. Instead, a little clique of Justices, surrounded by a gaggle of jejune law clerks still wet behind the ears from law schools, does. More than that: They know better than not only We the People but also the Founding Fathers.

Unashamedly, they say as much. In Lawrence v. Texas, a majority of the Supreme Court told America that,

[h]ad those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known of the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.

539 U.S. 558, 578-79 (2003) (Kennedy, J., for the Court).

That the men who wrote the Constitution in order, as the Preamble recites, to “secure the Blessings of Liberty to ourselves and our Posterity” did not “know[ ] of the components of liberty in its manifold possibilities” would no doubt have surprised James Madison, Thomas Jefferson, Patrick Henry, and even Alexander Hamilton. Men of their stamp would doubtlessly be suspicious of modern-day Justices who claim some special “insight” into these matters. And they would be leery that Justices who today know that “laws once thought necessary and proper, in fact serve only to oppress” may tell America tomorrow that laws the Founding Fathers once knew “serve only to oppress” are now to be welcomed as “necessary and proper.”

(2) The second relevant Marxist-Leninist principle that misdirects America’s Judiciary is DEMOCRATIC CENTRALISM. This is the practice according to which, once a majority of the highest political body of “the vanguard of the proletariat” has spoken on some issue, everyone else must obey without deviation or dissent. “Democratic centralism” is “democratic” in form, because it involves a vote. More to the point of the exercise of power, it embodies “centralism,” because commands emanate from the center and radiate outward. It is the absolute, arbitrary rule of a political party, committee, or politburo, imposed upon society from the top down.

In the constitutional context, “democratic centralism” appears in the Supreme Court’s arrant claims that “the interpretation of the [Constitution] enunciated by th[e Supreme] Court * * * is the supreme law of the land,” and that a decision of the Supreme Court “cannot be reversed short of a constitutional amendment.” Cooper v. Aaron, 358 U.S. 1, 18 (1958); and Gregg v. Georgia, 428 U.S. 153, 176 (1976). That is, according to the Justices who make such pronouncements, their decisions are the Constitution; and if We the People do not like those decisions, they must engage in the backbreaking process of changing the Constitution.

In lawyers’ jargon, this is the doctrine of “judicial supremacy.” Supremacy, not only over the two coordinate branches of the General Government (Congress and the President), but also over We the People as a whole. More accurately, it should be described as the fallacy or the fraud of “judicial supremacy.” For it cannot possibly apply to the coordinate branches of the General Government, inasmuch as a “coordinate” branch of government is “one [that] has no power to enforce its decision upon the other [coordinate branch].” Town of South Ottawa v. Perkins, 94 U.S. 260, 268 (1877). And it cannot possibly apply to We the People, because “We the People * * * ordain and establish th[e] Constitution” on an on-going, perpetual basis. U.S. Const. preamble. And “[t]he power to enact carries with it final authority to declare the meaning of the legislation.” Propper v. Clark, 337 U.S. 472, 484 (1949). As the Founding Fathers’ legal mentor William Blackstone made clear, “whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to.” Commentaries on the Laws of England (American ed., 1771-1773), Volume 1, at 212. If the Justices do not know this, they are simply incompetent to hold their offices. If they do know it, in claiming “judicial supremacy” they are usurping power in defiance of their “Oath or Affirmation, to support this Constitution” (Article VI, Clause 3), and are disqualified from office on that account.

Of course, the “democratic centralism” of “judicial supremacy” succeeds today only because the Constitution’s mechanism of checks and balances is not being brought into play. The cowardice and complicity of politicians in Congress is not the only explanation for this sorry state of affairs. Arguably even more responsible are the tens of millions of Americans who refuse to recognize that their own freedom requires self-government, and that self-government requires them to take the reins of government into their own hands. Either they will rule themselves, or someone else will rule them, and in a way they will find most disagreeable. Worse yet, time is running out. Americans had better act quickly, because the “democratic centralism” of “judicial supremacy” is proving itself an increasingly defective, dangerous, and even demented mechanism.

The last critical adjective is not rhetorical excess. In Lawrence v. Texas, a majority of the Supreme Court repeated the dictum of Planned Parenthood v. Casey, that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” 539 U.S. 558, 574 (2003), quoting from 505 U.S. 833, 851 (1992). This is nothing less than a license to refuse to face reality as it truly is, but instead to live in a dream world of self-generated illusions. In the exercise of charity, what must one call such a notion that has rationalized the deaths through abortion of millions of innocent and defenseless human beings, other than madness? It is a notion that reeks, not only of madness, but also of mendacity. For it provides a very selective license. As an excuse to kill the innocent, it is highly effective. As a reason, say, to withhold the taxes that enable public officials to kill and maim innocent individuals across the globe, and thereby draw the world’s hatred upon America, it is totally impotent.

(3) The third relevant Marxist-Leninist principle that infects America’s courts is THE DICTATORSHIP OF THE PROLETARIAT. This inevitably results from “democratic centralism” at the hands of “the vanguard of the proletariat,” and amounts to the dictatorship of “the vanguard” over the proletariat (and everyone else). The key term here is “dictatorship.” As Lenin himself wrote, “[t]he scientific term ‘dictatorship’ means nothing more nor less than authority untrammeled by any laws, absolutely unrestricted by any rules whatsoever, and based directly on violence.” “A Contribution to the History of the Question of the Dictatorship, in Collected Works, Volume 31, at 353 (Moscow, USSR: Progress Publishers, 4th English edition, 1966).

Self evidently, those who can successfully claim the final authority to declare “the law” become “the law” for all intents and purposes. Because they can make up “the law” as they go along, they are “absolutely unrestricted by any rules whatsoever.” And their rulings will be “based directly on violence,” because violence—of police, prosecutors, and prisons—rather than the power of their reasoning will enforce them.

The most blatant example of where the contemporary judicial “dictatorship of the proletariat” must lead is the utterly fantastic “right” to abortion created in Roe v. Wade, 410 U.S. 113 (1973). Common sense and simple human decency teach any individual of good will that no “right” for one human being to kill another innocent, defenseless human being can possibly exist. Yet today’s jurists, the products of America’s most prestigious law schools, tell this country that some human beings are not “persons,” protected by law; that they have no rights at all; and that they may be killed for any reason the Judiciary accepts. That is, what happens to these innocent victims is “absolutely unrestricted by any rules whatsoever, and based directly on violence.” Indeed, in the truest sense it is the rule of violence.

To imagine that this homicidal principle can or will be restricted solely to unborn human beings is wishful thinking. If some human beings can be declared “nonpersons” and stripped of all rights, then any human beings can be reduced to that status. After all, it is only a matter of devising a legalistic rationalization—which in any event cannot be challenged, because a decision of the Supreme Court supposedly “is the supreme law of the land.” Terry Schiavo’s is simply one notorious case in point. “Ask not for whom the bell tolls…”

Perhaps the most insidious aspect of all this is how the reality of judicial dictatorship hides behind a facade of “constitutional law,” the charade of “legal procedure,” and all the deceitful mumbo jumbo of “lawful authority,” “legal ethics,” and so on. The facade, charade, and mumbo jumbo are so thin, though, that it passes understanding why so few Americans express disapproval, let alone dismay and disgust. When a conception as noble as constitutional law is twisted into a cloak for genocide, something is so unnaturally wrong that even the demons in Hell must take notice. For part 2 click below.