The Fallacy of Court Neutrality

 
Article by Paul Krause in "The American Thinker":

The fallacy of Supreme Court neutrality is that so long as the Court advances or upholds the woke progressivism that has strangled the country since the 1930s — but especially since the 1960s and 1970s — everything is hunky-dory.  If, however, the Court ever had the audacity not merely to rule in the general direction of even mainstream conservatism, but to restore the original constitutional union our forefathers established, then the knives would be out in full force, and complaints of an anti-American, anti-constitutional, and radically political Judiciary would dominate the bullhorns of our petty tyrants masquerading as defenders of democracy.

The problem with stare decisis and the mainstream conservative juridical philosophy is that it accepts, prima facie, the uniform, universalist, and progressive anti-Constitution that has been coercively imposed over the United States in the twentieth century.  It is unsurprising that it is always Republican Court nominees who become liberals.  The logic of stare decisis demands it.  A clearly unconstitutional ruling, so long as it was imposed over the country by the Supreme Court, becomes the new constitutional precedence to affirm and build from.  Any challenge to this anti-constitutional constitutionalism — how's that for a contradiction? — is met with opposition as being radically destructive.

In Federalist 78, the most oft-cited of the Federalist Papers concerning the Supreme Court, Alexander Hamilton expounds on the need for an independent Judiciary.  I do not think anyone would disagree on the principle of an independent judiciary.  The problem is that this veil of judicial independence masks the fact that we do not even operate under the constitutional union Madison, Hamilton, Jay, and others envisioned when authoring the Federalist Papers and the Constitution itself.  When Hamilton writes that the Court should "exercise ... judicial discretion, in determining between two contradictory laws," he does not mean that in a state-versus-federal dialectic.  He meant it in a federal-versus-federal dialectic.

The original constitutional union was meant to protect the sovereignty and independence of the individual states from the prospective imposing tyranny of a homogenizing federal government.  The Constitution speaks of a "union" of states, never a "nation" in the nineteenth-century ideal of European progressives and Abraham Lincoln.  This union of states meant to maintain the sovereignty of each colony turned state with its own particular history, heritage, and legal customs and traditions.  The original constitutional union was the first and only embodiment of a true pluralism in the United States.

The greatest document that testifies to this early reality is Alexis de Tocqueville's Democracy in America.  The French aristocrat, originally in America to report on its prison system, ended up penning the quintessential work of early American political science and philosophy.  In it, Tocqueville noted the unique exceptionalism of the American political union:

It is proposed to examine the following chapter what is the form of government established in America on the principle of the sovereignty of the people; what are its resources, its hindrances, it advantages, and its dangers.  The first difficulty which presents itself arises from the complex nature of the constitution of the United States, which consists of two distinct social structures, connected and, as it were, encased one within the other; two governments, completely separate and almost independent, the one fulfilling the ordinary duties and responding to the daily and indefinite calls of the community, the other circumscribed within certain limits; and only exercising an exceptional authority over the general interests of the country.  In short, there are twenty-four small sovereign nations, whose agglomeration constitutes the body of the Union.

Tocqueville would go on to say, "The attributes of the Federal Government were therefore carefully enumerated and all that was not included amongst them was declared to constitute a part of the privileges of the several Governments of the States.  Thus the government of the States remained the rule, and that of the Confederation became the exception."  What becomes clear, when carefully reading the language of the American Constitution, alongside the Federalist Papers and Tocqueville, is that the "Government of the States" was meant to be the norm and the federal government the exception.  When Hamilton writes of an independent Judiciary "exercis[ing] judicial discretion, in determining between two contradictory laws," he means it from the perspective of federal law only.  Do new federal laws passed contradict the established federal laws in existence?  New federal laws were never meant to overturn existing state laws and traditions.

This is apparent to anyone with modest knowledge of American history and legal jurisprudence — at least before it was destroyed and rewritten through an unconstitutional accretion over a century of Supreme Court rulings.  The Constitution, as we know, permits freedom of religion and prevents Congress (the federal Legislature) from establishing a national (federal) religion.  However, the individual states were permitted to have state religions of their own.  The religious traditions of Massachusetts and Connecticut, for instance, differed from those of South Carolina and Maryland.

What those states did was not a matter of concern for the federal government.  So it was that the states had their own state churches until they voluntarily disestablished them, many in the 1800s (1817 in Connecticut and 1833 in Massachusetts, 1790 in South Carolina).  The disestablishment of the state churches was not by a Supreme Court mandate, but through state legislative discretion (often because of growing religious diversity wrought by the Great Awakenings).  This is one, perhaps the most evident, example of how the original constitutional union worked.  State traditions and laws were left in the hands of the states and federal law was left in the hands of the newly established federal government.  The federal Constitution meant to apply to the federal government and not retroactively imposed (as it is now) over the individual states.

A long series of wars, literal and juridical, have since been fought over whether the United States would remain a union of states or become, in the European manner, a homogenized conglomeration called a "nation."  The Civil War, the New Deal, and the Great Society all advanced the cause — unintentionally or intentionally — of uniform and universal progressivism over the Union.  The Union, by 1965, had all but ceased to exist.  The United States had become the national state ruled by a bureaucratic and managerial imperium emanating out of Washington, D.C. and fully backed by the Supreme Court after its rulings throughout the 1940s–1970s.

This brings us to the toughest pill to swallow.  It may be counterintuitive at first glance.  We still lack a politicized Supreme Court in the sense of an "activist court" leading the charge to build the fantastical "new nation" dreamt of by Abraham Lincoln, Franklin Roosevelt, and Lyndon Johnson.  Instead, the Supreme Court acts as the buttress against any threat to the new national empire and its unconstitutional tyranny.  In doing so, the Supreme Court acts as the legitimist veil for the woke empire that corrosively poisons the United States.  However illegal the new policies of the federal government are, you can count on the Supreme Court backing it up.  The Court, in actuality, is the subjugated legitimizer of the unconstitutional imperium that has been coercively imposed over the United States.

The Supreme Court no longer adjudicates federal law.  Instead, it destroys the local laws and customs of the individual states and subjugates them to the federal Leviathan.  The rich plurality of customs, laws, and traditions that fascinated Tocqueville and earned his praise and admiration has become a dry and bland entity universality dictated from above by Washington bureaucrats and middle managers backed by the dictatorial gavel of black robes.

So-called Court independence and neutrality, as promoted by our woke imperial establishment, is whenever the Court rules to defend its illegal imperium.  Conservatives must choose between being cuckolded servants of the woke empire — simply with a sprinkle of low taxes here and pro-business rulings there, as they currently are — or truly restorationist constitutionalists, who will dismantle the accreted tyranny of the national state, which suffocates and destroys the now 50 small sovereign nations that make up the American union.  Anything short of restoring the government of the states as the norm and dismantling the imperial Leviathan's grip on the states will only lead to continued strangulation of this once great republic.

https://www.americanthinker.com/articles/2020/07/the_fallacy_of_court_neutrality.html