Some excellent reading, reminders of how we actually fit in the equation of a democracy.
Question: I’ve been reviewing the Constitution and wonder about trumps and Vance’s recent actions of aiding the enemy, with a clear intention to destroy our democracy/country.
Why isn’t Congress taking this up? It’s clearly treason, IMHO
Excellent piece and excellent principles! Allow me to provide an example that supports and illustrates some of your points.
The primary point of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (Marshall, C.J.) was that even if all three branches conspired to violate our Constitution, they still could not override our Constitution. It is well settled (including in Marbury v. Madison) that our Constitution did not vest in any federal judge any power to lie about or knowingly violate our Constitution. I could barely believe my eyes when I saw the SCOTUS majority in Dobbs lie about the Ninth Amendment and then knowingly violate the Ninth and Tenth Amendments.
The Tenth Amendment obviously emphasized that federal judges could not exercise any "powers" that were "not delegated to the United States by the Constitution." The Ninth Amendment obviously emphasized that a particular power was not delegated to federal courts.
The majority in Dobbs (twice) knowingly and absurdly misrepresented that the Ninth Amendment stated a mere "reservation of rights to the people." The Ninth Amendment clearly was not merely (or even primarily) a "reservation of rights." The Ninth Amendment clearly is what judges commonly call "a rule of construction." It expressly and emphatically commanded how "the Constitution" absolutely "shall not be construed."
The Ninth Amendment expressly and emphatically commanded judges not to do exactly what the Dobbs majority did, i.e., not construe our Constitution "to deny or [even] disparage" any right "retained by the people" on the grounds that a right was not expressly included in any "enumeration in the Constitution." That command was clearly directed especially at judges whose duty is to construe the law (say what the law is).
After the Dobbs majority lied about the meaning of the Ninth Amendment, they knowingly violated it. They deceitfully focused our attention on the obviously irrelevant fact that “[t]he Constitution makes no express reference to a right to obtain an abortion." Then, they lied again. They knowingly misrepresented the consequence (dictated by our Constitution) of the foregoing irrelevant fact: "therefore those who claim that [our Constitution] protects [any] right [at issue] must show that the right is somehow implicit in the constitutional text.”
The Dobbs majority abused the foregoing lies about the law and their violation of our Constitution to pretend to justify shifting the crucial burden of proof--from the government (when it infringed on rights) onto citizens (asserting rights). The misrepresentation of law and violation of law by the Dobbs majority was clearly barred by the plain text and plain meaning of the Ninth and Tenth Amendments. It's almost unbelievable that those judges dared to do what they did in writing.
The Dobbs majority did not--and cannot--prove that their conduct and contentions did not violate our Constitution. Amendment I especially clearly barred judges from abusing their positions and powers for the "establishment" of their own "religion" or imposing their religious viewpoints on other persons (as they did in Dobbs). Amendment XIII clearly barred judges from abusing their positions and powers to facilitate "involuntary servitude" by other persons. Compelling a woman (or a couple) to involuntarily support a fetus (for some 9 months) and then a child (for some 18 years) necessarily is involuntary servitude. Moreover, our Constitution also clearly does guarantee a woman's right to use deadly force (even against another actual person and even against a citizen) for self-defense or self-preservation. That was the emphatic point of a decision by the same SCOTUS majority separated by only one day from their Dobbs decision. See all the many references to defense (or defence) or preservation in the analysis of the meaning of Amendment II in N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) (and even far more so in District of Columbia v. Heller, 554 U.S. 570 (2008)).
Contrast what the Dobbs majority did with conduct that Congress made criminal.
Any judges “conspir[ing] to injure, oppress, threaten, or intimidate” any person “in the free exercise or enjoyment of any right or privilege secured to” them “by the Constitution or laws of the United States, or because of” their “having so exercised” any such “right or privilege” commit a crime. 18 U.S.C. 241.
Any judge acting “under color of any law” or “custom” to “willfully” deprive any person “of any rights, privileges, or immunities secured or protected by” any provision of the “Constitution” or federal “laws” commits a crime. 18 U.S.C. 242. No judicial action or custom is exempt, including so-called deference, comity, reciprocity, res judicata, presumptions or pretenses (e.g., that hearsay by judges is true or is evidence it is true). In Section 242, the “qualification” regarding “alienage, color and race” is inapplicable “to deprivations of any rights or privileges.” United States v. Classic, 313 U.S. 299, 326 (1941).
“Even judges” clearly “can be punished criminally” under 18 U.S.C. 241 or 242 “for willful deprivations of constitutional rights.” Imbler v. Pachtman, 424 U.S. 409, 429 (1976). Accord Dennis v. Sparks, 449 U.S. 24, 28, n.5 (1980); Briscoe v. Lahue, 460 U.S. 325, 345, n.32 (1983); Ex parte Virginia, 100 U.S. 339 (1880) (criminal prosecution of judge for abuse of official power).
That last decision (Virginia) is featured in a significant number of SCOTUS justices' opinions, esp. those of Justice Thomas, as well as in the D.C. Circuit decision and in DOJ briefing in Trump's immunity case.
I am a lawyer and I've read the opinions and dissents on most of the major SC cases. This is a very powerful article, I hope it gains wider influence. The controversial Robert's court decisions are all outcome driven: the majority "applies" the law and interpretive principles to reach the majority's desired policy outcome. I totally agree that liberal thinkers have attributed to the Court a respect and authority based on the Warren court doing the right thing when we are well past the sell by date for that kind of thinking. Along with what John says, to the extent interpretive principles are needed, they candidly need to be things like what's in the best interest of the country. Especially at the juncture we are now. I think it's likely that SCOTUS will give a green light to Trump for everything he's doing, on a deeply fawed concept of the "unitary executive."
We can feel overwhelmed. We can feel angry and impotent. But resistance can start with a simple courageous act...
*Russian anitwar protestors holding up a blank sheet of paper;
*British Prime Minister Starmer exiting10 Downing St. to walk down the sidewalk to greet Zelenskyy and giving him a hug;
*Zelenskyy deciding to show solidarity with his people by NOT wearing a suit (Note to Brain Glenn: of course he owns a suit; you embarrassed yourself)
I propose that we steal a play from MAGA; wear a cap or beanie that demands "We the People" hold the power. I will start working on this project today and let everyone know when the hats are ready-free of charge. I'm serious. I am going to create a website right now:
"We the People S.O.A.R-Save Our American Republic"
I will make beanies that are embroidered with "We the People S.O.A.R."
Hi Barry, Thanks for your "Yes". That single word gave me hope. So, knowing that I was not alone, my husband and I have been hard at work creating the S.O.A.R website and hats. I will let you know as soon as we go live. It's kinda scary to do something so out of my wheel house and at my age, but I'm so very glad to be able to SOAR! Thank YOU!
This was a great written piece. This article is packed with true knowledge. Thank you for posting! I think the more we(the people of the U.S.) read and learn the true actions of our current administration, the more we build a resistance to this plutocracy. This piece was very enlightening. Thank you Mr. Podhorzer.
Great piece. You’re right. Words do, in fact, matter— framing this court as The Roberts Court (instead of The Supreme Court) and discussing its decisions thru the lens of ‘WHO BENEFITS?’ will eventually illustrate to us non-lawyers exactly who these “justices” are working for and how they are perverting the constitution and the rule of law at every turn in their service to a sick, selfish ideology. We are living in a tragedy.
This is excellent work and a lot of work. These deep analyses are necessary to begin educating all of us. Even those who think they are informed already. This work is a great act of generosity.
I must admit that I never realized how easily our progress in self-rule for 250 years could be erased.
I never thought it "could not happen here" but it has been fast and checks/balances, oversight, Impeachment, law/order, honorable public servants no longer protect us or USA.
WE are on our own as never before and WE must take actions now or spill blood later once sides are firmed up.
SO MUCH is wrong with our governments, society, money distribution. There is so little time to stop this COUP. Restoring any former power structure will invite similar rampages on our lives, liberty, pursuit of happiness and law/order/justice.
We the People are in charge if they want to be. I question if they want to be.
All true--the GOP and Trump-appointed judges have greatly distorted constitutional principles and the balance of power in our three branches. However, we should not lose sight of the fact that the root cause of this is the Republican Party, which has lost its moral compass and is intellectually and morally bankrupt. The Constitution provides that Congress can pass new legislation to override poor court decisions. If not for Republicans, Congress could have overturned Dobbs, Citizens United, Shelby and many other undemocratic decisions.
SCOTUS GAVE gRUMPY II A GREENLIGHT TO RUN FOR PRESIDENT. A RECEIPE FOR THE CURRENT DISASTER. IMPEACP THE WHOLE COURT. START OVER, WITH TERM LIMITS AND A CODE OF ETHICS.
Some excellent reading, reminders of how we actually fit in the equation of a democracy.
Question: I’ve been reviewing the Constitution and wonder about trumps and Vance’s recent actions of aiding the enemy, with a clear intention to destroy our democracy/country.
Why isn’t Congress taking this up? It’s clearly treason, IMHO
Because the Congress is Republican
Exactly
Treason on a scale exceeding any crimes committed by the Rosenbergs.
The definition of treason is giving aid and comfort to the enemy. Trump did this for Putin who is the enemy of NATO.
Excellent piece and excellent principles! Allow me to provide an example that supports and illustrates some of your points.
The primary point of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (Marshall, C.J.) was that even if all three branches conspired to violate our Constitution, they still could not override our Constitution. It is well settled (including in Marbury v. Madison) that our Constitution did not vest in any federal judge any power to lie about or knowingly violate our Constitution. I could barely believe my eyes when I saw the SCOTUS majority in Dobbs lie about the Ninth Amendment and then knowingly violate the Ninth and Tenth Amendments.
The Tenth Amendment obviously emphasized that federal judges could not exercise any "powers" that were "not delegated to the United States by the Constitution." The Ninth Amendment obviously emphasized that a particular power was not delegated to federal courts.
The majority in Dobbs (twice) knowingly and absurdly misrepresented that the Ninth Amendment stated a mere "reservation of rights to the people." The Ninth Amendment clearly was not merely (or even primarily) a "reservation of rights." The Ninth Amendment clearly is what judges commonly call "a rule of construction." It expressly and emphatically commanded how "the Constitution" absolutely "shall not be construed."
The Ninth Amendment expressly and emphatically commanded judges not to do exactly what the Dobbs majority did, i.e., not construe our Constitution "to deny or [even] disparage" any right "retained by the people" on the grounds that a right was not expressly included in any "enumeration in the Constitution." That command was clearly directed especially at judges whose duty is to construe the law (say what the law is).
After the Dobbs majority lied about the meaning of the Ninth Amendment, they knowingly violated it. They deceitfully focused our attention on the obviously irrelevant fact that “[t]he Constitution makes no express reference to a right to obtain an abortion." Then, they lied again. They knowingly misrepresented the consequence (dictated by our Constitution) of the foregoing irrelevant fact: "therefore those who claim that [our Constitution] protects [any] right [at issue] must show that the right is somehow implicit in the constitutional text.”
The Dobbs majority abused the foregoing lies about the law and their violation of our Constitution to pretend to justify shifting the crucial burden of proof--from the government (when it infringed on rights) onto citizens (asserting rights). The misrepresentation of law and violation of law by the Dobbs majority was clearly barred by the plain text and plain meaning of the Ninth and Tenth Amendments. It's almost unbelievable that those judges dared to do what they did in writing.
The Dobbs majority did not--and cannot--prove that their conduct and contentions did not violate our Constitution. Amendment I especially clearly barred judges from abusing their positions and powers for the "establishment" of their own "religion" or imposing their religious viewpoints on other persons (as they did in Dobbs). Amendment XIII clearly barred judges from abusing their positions and powers to facilitate "involuntary servitude" by other persons. Compelling a woman (or a couple) to involuntarily support a fetus (for some 9 months) and then a child (for some 18 years) necessarily is involuntary servitude. Moreover, our Constitution also clearly does guarantee a woman's right to use deadly force (even against another actual person and even against a citizen) for self-defense or self-preservation. That was the emphatic point of a decision by the same SCOTUS majority separated by only one day from their Dobbs decision. See all the many references to defense (or defence) or preservation in the analysis of the meaning of Amendment II in N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) (and even far more so in District of Columbia v. Heller, 554 U.S. 570 (2008)).
Contrast what the Dobbs majority did with conduct that Congress made criminal.
Any judges “conspir[ing] to injure, oppress, threaten, or intimidate” any person “in the free exercise or enjoyment of any right or privilege secured to” them “by the Constitution or laws of the United States, or because of” their “having so exercised” any such “right or privilege” commit a crime. 18 U.S.C. 241.
Any judge acting “under color of any law” or “custom” to “willfully” deprive any person “of any rights, privileges, or immunities secured or protected by” any provision of the “Constitution” or federal “laws” commits a crime. 18 U.S.C. 242. No judicial action or custom is exempt, including so-called deference, comity, reciprocity, res judicata, presumptions or pretenses (e.g., that hearsay by judges is true or is evidence it is true). In Section 242, the “qualification” regarding “alienage, color and race” is inapplicable “to deprivations of any rights or privileges.” United States v. Classic, 313 U.S. 299, 326 (1941).
“Even judges” clearly “can be punished criminally” under 18 U.S.C. 241 or 242 “for willful deprivations of constitutional rights.” Imbler v. Pachtman, 424 U.S. 409, 429 (1976). Accord Dennis v. Sparks, 449 U.S. 24, 28, n.5 (1980); Briscoe v. Lahue, 460 U.S. 325, 345, n.32 (1983); Ex parte Virginia, 100 U.S. 339 (1880) (criminal prosecution of judge for abuse of official power).
That last decision (Virginia) is featured in a significant number of SCOTUS justices' opinions, esp. those of Justice Thomas, as well as in the D.C. Circuit decision and in DOJ briefing in Trump's immunity case.
I am a lawyer and I've read the opinions and dissents on most of the major SC cases. This is a very powerful article, I hope it gains wider influence. The controversial Robert's court decisions are all outcome driven: the majority "applies" the law and interpretive principles to reach the majority's desired policy outcome. I totally agree that liberal thinkers have attributed to the Court a respect and authority based on the Warren court doing the right thing when we are well past the sell by date for that kind of thinking. Along with what John says, to the extent interpretive principles are needed, they candidly need to be things like what's in the best interest of the country. Especially at the juncture we are now. I think it's likely that SCOTUS will give a green light to Trump for everything he's doing, on a deeply fawed concept of the "unitary executive."
We can feel overwhelmed. We can feel angry and impotent. But resistance can start with a simple courageous act...
*Russian anitwar protestors holding up a blank sheet of paper;
*British Prime Minister Starmer exiting10 Downing St. to walk down the sidewalk to greet Zelenskyy and giving him a hug;
*Zelenskyy deciding to show solidarity with his people by NOT wearing a suit (Note to Brain Glenn: of course he owns a suit; you embarrassed yourself)
I propose that we steal a play from MAGA; wear a cap or beanie that demands "We the People" hold the power. I will start working on this project today and let everyone know when the hats are ready-free of charge. I'm serious. I am going to create a website right now:
"We the People S.O.A.R-Save Our American Republic"
I will make beanies that are embroidered with "We the People S.O.A.R."
Would YOU wear this???
Yes
Hi Barry, Thanks for your "Yes". That single word gave me hope. So, knowing that I was not alone, my husband and I have been hard at work creating the S.O.A.R website and hats. I will let you know as soon as we go live. It's kinda scary to do something so out of my wheel house and at my age, but I'm so very glad to be able to SOAR! Thank YOU!
It's initiatives like yours that will defeat fascism. Hope the SOAR hats are soaring!
Be nice if someone else did too!
Yes. I would wear your We The People SOAR hat, I’d Buy it, by the way. Thank you.
These hats arrived if you still want one!
This was a great written piece. This article is packed with true knowledge. Thank you for posting! I think the more we(the people of the U.S.) read and learn the true actions of our current administration, the more we build a resistance to this plutocracy. This piece was very enlightening. Thank you Mr. Podhorzer.
When the revolution comes, do not forget the fascist six on the US Kangaroo Court!!!
Great piece. You’re right. Words do, in fact, matter— framing this court as The Roberts Court (instead of The Supreme Court) and discussing its decisions thru the lens of ‘WHO BENEFITS?’ will eventually illustrate to us non-lawyers exactly who these “justices” are working for and how they are perverting the constitution and the rule of law at every turn in their service to a sick, selfish ideology. We are living in a tragedy.
This is excellent work and a lot of work. These deep analyses are necessary to begin educating all of us. Even those who think they are informed already. This work is a great act of generosity.
Brilliant - as always!
You see and call out what most others miss.
With love and gratitude for all the good and important work you are doing.
I learned so much from your article. Thank you
While the analysis is excellent, the recommendations seem to me to just leave us blowing in the wind.
I must admit that I never realized how easily our progress in self-rule for 250 years could be erased.
I never thought it "could not happen here" but it has been fast and checks/balances, oversight, Impeachment, law/order, honorable public servants no longer protect us or USA.
WE are on our own as never before and WE must take actions now or spill blood later once sides are firmed up.
SO MUCH is wrong with our governments, society, money distribution. There is so little time to stop this COUP. Restoring any former power structure will invite similar rampages on our lives, liberty, pursuit of happiness and law/order/justice.
We the People are in charge if they want to be. I question if they want to be.
All true--the GOP and Trump-appointed judges have greatly distorted constitutional principles and the balance of power in our three branches. However, we should not lose sight of the fact that the root cause of this is the Republican Party, which has lost its moral compass and is intellectually and morally bankrupt. The Constitution provides that Congress can pass new legislation to override poor court decisions. If not for Republicans, Congress could have overturned Dobbs, Citizens United, Shelby and many other undemocratic decisions.
TRAITORS - Roberts, Alito, Thomas, Gorsuch, Kavanaugh, Barrett. The Supreme Court Benedict Arnolds. And "thirty pieces of silver".........
Three Teddy Bears and Six Kangaroos
Three teddy bears
and six kangaroos
Lifetime appointments
Not for you to choose
Diversity, Equity and Inclusion
On full display
Of three court justices
A statement of their day
Of the other six?
Who’s to say?
Can they be replaced?
Perhaps some day
As we watch in horror
A King’s holding court
Over an entire Nation
Empowered by his cohorts
What can we do?
Please stay tuned
As we empower the teddy bears
And oust the kangaroos!
SCOTUS GAVE gRUMPY II A GREENLIGHT TO RUN FOR PRESIDENT. A RECEIPE FOR THE CURRENT DISASTER. IMPEACP THE WHOLE COURT. START OVER, WITH TERM LIMITS AND A CODE OF ETHICS.