Vox Populi
A Letter to the Editor

United States Supreme Court decisions that are not constitutional
should be ignored by Congress and the President

Sunday, March 4, 2007

by Kenneth Scot Stremsky

Just because the United States Supreme Court says something is not part of the Law of the Land does not mean that it is not. It just means that it is not part of the law now according to it. United States Supreme Court decisions that are not constitutional should be ignored by Congress and the President of the United States of America.

The United States Supreme Court has voided past United States Supreme Court decisions. The United States Constitution does not itself say the Preamble is not the Law of the Land which means that it is.

I hope people will remember that Amendment Nine of the United States Constitution says "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

People should realize that smoking in restaurants is protected by Amendment Nine of the United States Constitution. If you are over 18 years old and the United States Constitution itself does not say you cannot do something, you should be allowed to do it when it harms you as long as it does not harm anyone else because of Amendment Nine of the United States Constitution.

The United States Supreme Court now attacks Amendment Five of the United States Constitution which says "nor shall private property be taken for public use, without just compensation." The United States Supreme Court thinks it is okay to throw people out of their homes to build shopping malls that would increase tax revenues. Our Founders adopted Amendment Five to protect people from the government acting this way.

Congress has the ability to create a National Police Force because of Article One, Section Eight of the United States Constitution which says Congress has the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (clause 18)

A National Police Force would help execute laws. What is the point in having laws that are constitutional, if the government is not able to Execute (enforce) them?

Article One, Section Eight of the United States Constitution also says Congress has the ability "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." (clause 15). Congress could consider the National Police Force part of the Militia because the United States Constitution does not say what the Militia may be comprised of. Amendment Ten of the United States Constitution does not void Article One, Section Eight which means Congress may create a National Police Force if it wants to.

I never expected to win when I ran for Senate. I ran to get issues discussed, especially the Constitution.

Senator Sununu when he was a Congressman wrote a piece for the Manchester Union Leader that gave his reasons for supporting Trade Promotion Authority for the President of the United States of America. He did not care that Article One, Section Eight of the United States Constitution says Congress has the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." (clause 3)

I hope more people will run for elective office. I hope more people will care that Federal, State, and local governments are infringing more and more on the Bill of Rights. I hope people will care that Congress is not fulfilling its constitutional responsibilities by allowing the President of the United States of America to do things Congress is required to do according to Article One.

You should not expect to win elective office if you run. You should not expect to get many votes. I expected to get less than 100 votes and I expected to get very little media coverage. I got more than 1,000 votes. I got interviewed by The Associated Press, New Hampshire Public Television, The Nashua Telegraph, and others. My campaign was mentioned in several states and Australia. You may type stremsky in http://www.google.com to see the amount of coverage I received.

Most of our citizens do not realize how lucky they are to live in this country. Most people think because they have freedoms now, they will have freedoms in the future. Rome was a Republic before it became a messed up Empire that eventually collapsed. China used to be one of the most powerful trading nations in the world before it cut itself off substantially from the world and was eventually divided up by several countries.

I do not think President Bush and most members of Congress care much about the Bill of Rights and the rest of the United States Constitution because most people in our country do not bother to consider the Bill of Rights and the United States Constitution when they vote.

The freedoms we have we have because many soldiers have died fighting for them and many people have protested when governments have infringed on our freedoms. If you want to make our country better, I hope you will read the United States Constitution, study some United States history and some history that predates the existence of our country, and then vote. I also hope you will write letters to editors of newspapers and elected officials. I have written many letters to editors and many letters to elected officials. Freedom of speech and freedom of the press need to be used often if the Bill of Rights and our Republic are going to be in existence long after we are all dead.

Kenneth Scot Stremsky
2002 United States Senate candidate from New Hampshire
kstremsky1 at yahoo dot com

Mr. Berg-Andersson responds:

First of all, I will here note that Mr. Stremsky has again touched on his support for the concept of a National Police Force in his 'vox Populi' above. I will not at all again address this right now, since he and I well debated/discussed this via a series of his 'vox Populi's and associated responses from me back in November 2002.

(For the reader who might wish to now peruse that long-ago "back and forth" between he and I on this issue, there [in response to a Commentary of mine in which I expounded upon the weaknesses of the then-brand new Homeland Security Act] was, first of all, his original 'vox Populi' and my response to it, followed by his own response to my response on this score and my rebuttal (in which I first touched on the legal position of the Preamble to the Constitution, even citing the Jacobson case I also so recently mentioned); there was a final exchange with Mr. Stremsky on the issue of a National Police Force and, right in the middle of all these exchanges, there was first one and then a follow-up 'vox Populi' [with concomitant responses from me] from one Mr. Bolineau opining on the National Police Force issue from the perspective of comparison with Canadian constitutionalism. I include all these links herein for the benefit of the interested reader because many of the points I have been making in my responses to 'vox Populi' now in recent weeks were stated within my portions of all these exchanges to which I have referred).

As for Mr. Stremsky's contention that "[j]ust because the United States Supreme Court says something is not part of the Law of the Land does not mean that it is not. It just means that it is not part of the law now according to it. United States Supreme Court decisions that are not constitutional should be ignored by Congress and the President of the United States of America", I will directly address these words of his as herein quoted later in this response, but in order to do so most fairly I here offer- if I might- an admittedly oversimplified explanation of issues relating to that which has become known, in Political Science, as 'Separation of Powers':

When the political philosophers who, in the end, were responsible for the development of so-called "classical" Liberalism ("liberalism" here not having the altogether simplistic meaning it has gained in the course of political battle with the equally simplistically defined "conservatives" in late 20th Century, now very early 21st Century, America but, rather, meaning the championing of the Civil Liberties of a Free People [hence, the term having its origin in the Latin liberales: "he who is free"]) first began seriously contemplating what would come to be called 'Separation of Powers', they perceived but two co-equal branches of government: the Legislative and the Executive. In order to see why, one must, first of all, realize that the earliest discussions of such Separation of Powers was largely in response (and opposition) to late Medieval era Feudalism and early Modern era Absolutism in the West.

As I myself noted in a Commentary of mine dated last 9 June:

"Hear, and Obey" were the primary watchwords of the day, not "hear, and discuss"-- and certainly not "hear, and dissent"! The Age of Feudalism, therefore, easily gave way- as the Medieval period was being succeeded by the Modern- to an Age of Absolutism: and it was to this very Absolutism that so-called "classical" (that is, the original form of) Liberalism was opposed as much as it was also an answer to the last dying embers of Feudalism itself.

In Feudalism, the Sovereign (crowned Head of State, whether King or Queen- or, for that matter, Grand Duke or Emperor- though I will use the term "King" as a generic term for the Sovereign, synonymous with "the Crown", throughout the foregoing discussion) had been seen as ruling his People by Divine Right, therefore the temporal representative of (the Christian and, in these pre-Reformation days, Catholic) God to his Nation and, as such, the earthly Fountainhead of Justice and, thus, ultimate Source of Law. All others governed under the jurisdiction of the King's sceptre- from highest Baron to lowest serf- were, however directly or indirectly, vassals to (that is, subjects of- precisely because they were ultimately subject to the will of) the King. Absolutism, meanwhile, was the modern era bastard child of Feudalism- the source of the 17th Century French King Louis XIV's (in?)famous dictum that L'etat c'est moi ("I am the State") and, in both political systems, Despotism- control of virtually everything by a single ruler- was always potentially (where not actually) a principal element, with Tyranny- oppressive Despotism- ever a very real danger.

To the earliest "classical Liberal" political thinkers, Freedom- and certainly not overlordship of a King by either Divine Right or mere Will to Power- was Humankind's natural state, the destiny of prehistoric Man and preceding such things as Civilization and its concomitant necessary evil, Government (even that by the Feudal or Absolutist Sovereign). However, it was recognized, by these earliest of what we would nowadays call political scientists, that the absolute freedom of the "noble savage" was not at all conducive to an orderly Society capable of Civilization: thus, Society could only function where it recognized the concept of Liberty- ordered Freedom preventing person A from, through exercising his own Liberty on his own terms, doing that which might prove detrimental to the just as valid Liberty of person B.

To the "classical Liberals", Liberties were deemed ancient (though not as ancient as the absolute Freedom enjoyed by primordial Man) and Feudalism and Absolutism were, in essence, later aberrations that had largely taken said Liberties away from the People. Thus, the question for them was not "should the average person be free?" (which would smack of something novel, where not also revolutionary [after all, crowned Heads of State could determine what political issues their subjects might discuss and such an outright demand for Liberty would more directly threaten the powers-that-were]) but, rather, the search was for how best to "restore" the ancient Liberties lost to Western humankind through Feudalism and still lacking in the Absolutism of the early modern era (and it was no accident that much of this intellectual discussion took place in the France of the House of Bourbon).

Ironically (considering that it would be a perceived diminution of their Rights as Englishmen which would lead American colonists to foment the Revolution that would produce the libertarian United States of America), these political thinkers thought England of the late 17th going through the 18th Century had well figured out the answer to their question. In the English Constitution of that era, they perceived the result of the struggles of Parliament versus Crown in the Puritan Rebellion leading to the Regicide of King Charles I, itself followed by a Cromwellian 'Commonwealth' falling prey to the Restoration of Stuart Kings themselves falling prey to the Glorious Revolution of 1688 as showing the surest way to defeat Royal Rule by Divine Right at the expense of the "ancient" Liberties of the People now seemingly restored upon the accession of William and Mary to the English throne.

Simply put: the power to make policy had to be separated from the power to carry out policy; in other words: those in government who created Law had to be altogether different from those who enforced that same Law. King had to be checked by Parliament and both King and Parliament had to do right in their guarding the Liberties of the People in order to retain political legitimacy. There was no pretense of Democracy in any of this, mind you, but there were the seeds of a nascent Republicanism (though only in the sense of a Constitutional Monarchy being what H.G. Wells would later call a "crowned Republic": no one at the time really foresaw the potential end of Monarchy itself; indeed, the 'Commonwealth' of the Cromwells [in at least some respects, the first modern Republic] was, instead, perceived as something of a cautionary tale of what dire fate might well befall a society with no King-- even the Stadtholder of the Dutch Republic [William III of Orange who had become King of England in the stead of his uncle James II in 1689 via his marriage to his cousin Mary] enjoyed a lifetime appointment as the Netherlands' "prince").

The power to make policy (in the form of laws) was referred to as Legislative, while the power to administer and enforce policy was referred to as Executive. In a simple formulation by way of explanation, it was often said that the Legislative branch dealt with the future (a piece of legislation would say, in effect, "from now on, X is illegal") while the Executive branch dealt with the past (enforcement of the law, by definition, pretty much meant dealing with people who had been caught doing 'X' in violation of said legislation).

Fully caught in the middle of all this was that which would come to be called the Judicial branch for, in the English system, it had both what could be defined as Legislative and Executive functions. The courts were the principal means through which past wrongs (whether civil or criminal in nature) were ultimately redressed, thus it was natural to think of judges as exercising Executive functions (and, indeed, in the English-become British Constitutionalism of the 18th Century, judges above the local level were considered to be "Ministers of the Crown" no less than those Ministers heading what we would today call 'government departments' and who would, later, come to form the British 'Cabinet': this has even been carried over into the American politicogovernmental system where, for example, judges and chief executives [whether Governors of the States or President of the United States] can be removed from office through the vehicle of Trial on Impeachment but legislators cannot be so impeached and removed from office [via the concept that legislatures must be left to alone judge the fitness of their own members to serve in public office: itself yet another check against Executive "tyranny"]).

Yet, every time a judge rendered a decision in a legal case brought before his court, new law was being created in his courtroom no less than in the legislature (as when, for example, person Z is duly convicted at trial of, say, Armed Robbery: said conviction has the force of law no less than if the legislature had had the power to pass a statute amending earlier laws defining Armed Robbery and declaring that "person Z is an Armed Robber under the definitions herein"). Judicial opinions also very often involved the future (as when, for instance, a court formally places an orphan under an adult's guardianship for a stated period of time)-- so, wasn't a court a Legislative body?

The American solution to this dilemma was the creation of the Judiciary as a third branch of government, apart from the Legislative and Executive. Although this arrangement is touched on by such as Montesquieu's Spirit of the Laws (a lifetime multi-volume work that- much like Arnold Toynbee's likewise multi-volume A Study of History, to which I have referred elsewhere in my writings on this site- ends up with statements by the author in the later volumes [reflecting notions opined years, if not decades, later] that conflict with firmest opinions read in the earlier ones), the practical application of a separate Judicial branch is largely an American innovation: it was employed in the earliest State Constitutions drafted in the wake of Independence in 1776 and found its way into the Constitution of the United States drafted at Philadelphia in 1787.

In the American model, there were to be three direct influences on governmental policy: the Legislative branch would still make policy; the Executive would still enforce it, once made; but now there would be a Judiciary independently applying it to individual cases and controversies arising under said policy. However, having made the Judiciary such a branch apart from the other two, the problem was now how to have the three branches of government properly interact with each other while still keeping them separate and distinct.

More to the point: where one or another branch of government claimed a power under the new Constitutions (and I use this term in the plural because the same "battle" had already been joined within the States of the nascent Union as was to be joined on the then-new Federal level) which another branch- or, for that matter, a community or individual- claimed the first branch(es) did not, indeed, have, who was to decide which side in the dispute was correct? In other words: who ultimately had the authority to most firmly decide what was, in fact, constitutional?

Thus, there developed three basic strands of constitutional and jurisprudential theory historically flowing from the concept of Separation of Powers in American Law from the very Founding of the Republic: Judicial Review (in which the Judiciary is held to be the final determiner of the meaning and application of the Constitution), Legislative Supremacy (which holds that the elected representatives of the People ultimately decide what is, and is not, constitutional) and Co-Equality (also known as the Egalitarian Doctrine: in which each branch should be allowed to determine, for itself, the meaning of the Constitution within its own sphere).

(It is singularly interesting, by the way, that no one of note who came out of the ultimately victorious Patriot side in the American Revolution seems to have argued for the Executive alone to determine the constitutionality of Law- but it must be kept in mind that the Revolution itself was ever presented as having been fueled by grievances against the British Crown, even though the supremacy of Parliament over Crown was largely already, by the 1770s, the legacy of the Glorious Revolution nearly a century earlier [it was Parliament, after all, that had passed the Stamp Act and the "onerous" tax on tea and Parliamentary statutes were what closed the port of Boston in response to the "Tea Party" and included the "Intolerable" Acts regulating and restricting local governance in Massachusetts Bay Province which proved to be the "powder keg" that ended up, at Lexington and Concord, lighting the Revolution itself: thus, the Patriots could have well argued that they were as much the victims of Legislative "Tyranny" as of that by the British Executive; they chose not to, of course, lest their own vision of their freely independent colonial assemblies (themselves, local Legislative branches) being the best repository of the "popular sovereignty" for which they were fighting be the more challenged- it was far easier, where not also more effective as regards propagandizing the Patriot cause, to opine the illegitimate denying of the due power of local legislatures by a far-way executive: it was also better, to this end, that the enemy have but one face- that of King George III, rather than the many faces of several Ministers of the Crown and other leaders in the British Parliament]).

In 'Judicial Review'- often referred to as the "Hamiltonian" position (for Alexander Hamilton, regarded as its earliest champion amongst those considered to be the Founders of the Nation)- the idea is that, while the Legislature passes legislation and the Executive either signs it into law (or, where the Executive vetoes it, the Legislature successfully overrides said veto)- after which the Executive (even where same does not actually support the law in question) is obliged to enforce it- in any subsequent case or controversy arising under that legislation before a court of Law, it is the power- as well as the very duty- of said court to apply that law to the instant case and, thereby, definitively determine the scope and meaning of the law insofar as the legal issues raised in that particular case are concerned.

Where constitutional issues come into play (that is, where a person asserts his or her [or even its (a corporation, for example, being a legal "person")] Rights as having been violated via enforcement of such a law [again, please keep in mind here what I reiterated, in my response to Mr. Stremsky's 2 March 'vox Populi', as regards the difference between such Rights and mere "privileges"])- that is, where consideration of the law in question includes applying a provision of a Constitution- Judicial Review mandates that the decision rendered by the court hearing the case be the more controlling as to what a relevant provision of said Constitution actually means; in other words: a law duly passed by the Legislature and enforced by the Executive can be declared unconstitutional (thus, legally null and void) by the Judiciary (subject to the obvious caveat that the Judiciary can't ordinarily just pick and choose on which laws to rule in the way members of both the Legislature and Executive can freely choose which issues of the day to discuss or emphasize- such debate or discussion potentially leading to the adoption of laws- as they each pretty much see fit but, instead, must only so rule when a live legal case has been presented before the court).

Under the doctrine of 'Legislative Supremacy'- often called the "Jeffersonian" position (after Thomas Jefferson, the Founding Father most associated with this concept)- the Legislative branch, being the duly elected representatives of the People, are to be the final arbiters of the constitutionality of the laws the legislature itself creates. The theory here is that, should a legislature do that which might prove injurious to the People's own Liberties, the People are then perfectly free to "throw the bums out" (to use a far more modern expression) at the next election and replace the incumbent legislators with other representatives who might prove to better defend their Rights.

Where there might be a conflict with the Executive or the Judiciary, this theory argues that the Legislative branch should be able to control these other branches through their own law-making powers granted by the very Constitution that created both it and them: if the Executive enforce Law unconstitutionally, the People's representatives should be able to adopt laws that would rein in such a "runaway" Executive (where a legislature might fail to override an Executive veto of an attempt to so rein the Executive in, this would simply mean [so it was opined by those favoring Legislative Supremacy] that the People, however inconvenienced, could- in the end- live with whatever "bad thing" the Executive might have done [else the People would have elected even more representatives who would have voted to override, rather than sustain, that veto]); where a court might render a decision that tended to apply the Constitution in a manner in which the majority of the People did not concur, the Legislative branch should be allowed to, by mere statute, change the actual determination of said court in the legal case in question, if not also alter the jurisdiction of said court (to prevent said court from ever ruling so again), if not even get rid of the court altogether!

In a sense, Judicial Review saw (and still sees) the Legislative and Executive branches as the "law-makers" (thus, to the courts, these are the so-called "political branches"- not just because they are elected at all levels [Federal, State and local]- but because they are where policy is debated and discussed prior to its adoption and due execution) and the Judiciary alone as the branch "carrying out" the Law (through its application of that Law to live cases and controversies brought before the courts), while Legislative Supremacy presupposes the legislature as the sole "maker of law" and the Executive and Judiciary each "carrying out" said Law only according to the will of the Law's "maker"- the Legislative branch itself. Therefore, in both of these theories, the original two-fold Separation of Powers (that between law-maker and law-enforcer) still casts its shadows, despite the presence of three branches.

The third theory of the relationship of the three branches to one another is the Co-Equal Principle or Egalitarian Doctrine- often called the "Madisonian" position (after James Madison)- in which all three branches are free to decide on their own what is, and is not, constitutional. In reality, the "Madisonian" appellation for this concept is at least somewhat disingenuous, since James Madison's own concept of the relationships between the branches of government was more complex (for instance, he saw the relationship between the two chambers within a bicameral legislature as being "strong vs. weak", thus the "weaker" chamber needed the aid of a "weak" Executive veto [seen as "weak" since it could conceivably be overridden] to strengthen the hand of the "weaker" chamber against the "stronger", etc.)

If each branch of government gets to decide what the Constitution might mean to itself without direct interference from any of the other two branches, how- then- do we know which branch is actually right?

Basically, best two out of three wins!

Thus, in the Egalitarian view, if the Legislative branch passes a law it, alone, thinks is fully constitutional (say-- oh--- a Foreign Intelligence Surveillance Act of 1978 [92 Stat. 1783]) and the Executive's method of enforcing said law [say-- oh-- wiretapping those an Administration believe might be terrorists without getting a warrant to do so first-- to take an example completely at random ;-)] is seen by the Executive itself as perfectly acceptable under the Constitution, then- even should the U.S. Supreme Court later rule that all this violates the 4th Amendment to that very document- the warrantless wiretaps would remain legal in any event since, at least per this Co-Equal Branches theory,

Legislative + Executive > Judiciary

therefore, Judiciary loses.


Executive + Judiciary > Legislative and

Legislative + Judiciary > Executive

Mr. Stremsky's own view, in his 'vox Populi' above, seems- at first glance- to be that of the Egalitarian "Madisonian" Doctrine (for he writes "United States Supreme Court decisions that are not constitutional should be ignored by Congress and the President of the United States of America" and this statement would fit quite well under this Co-Equal Branches position) but, as I have looked back over his previous 'vox Populi' (most recently, his 14 February one opining that Congress constitutionally has more power than the President over the military), I see far more agreement on his part, over all the time he has sent 'vox Populi' to 'The Green Papers', with the "Jeffersonian" Legislative Supremacy position.

Clearly, however, Mr. Stremsky does not at all hold to "Hamiltonian" Judicial Review.

There is nothing at all wrong with him saying that which he says, of course- again, "That's Freedom and that's America"; nevertheless, this does nothing to change the historical fact that Judicial Review has long been the principal methodology of American Jurisprudence over and against the other two theories I have herein cited- and for two major reasons (among others): one political, the other practical...

politically, Chief Justice John Marshall- in his famous opinion re: the decision in Marbury v. Madison [1 Cranch (5 U.S.) 137 (1803)] wrote the following:

It is emphatically the province and duty of the Judicial department to say what the Law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the Constitution; and the Constitution is superior to any ordinary act of the legislature; the Constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the Constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes to the Constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual...

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions- a written constitution- would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction.

Mr. Stremsky would, if we take him at his word based on what he has written above this response of mine, simply say 'well. just because the Supreme Court said it is the duty of the courts to say what the law is doesn't mean it is their duty. It just means that it is the courts' duty according to it'-- Fine!-- but every Supreme Court Term ever since Marbury was decided now more than two centuries ago has claimed- and, more to the point, has duly exercised- this very duty. Put another way: politically, Judicial Review has won...

at least so far!

But there are practical reasons for Judicial Review to have prevailed over the other two theories:

Let's look at the Co-Equal Branches/Egalitarian Doctrine:

Obviously, I did not choose FISA'78 and the recent Warrantless Wiretap controversy at all randomly when I referred to these earlier in this piece. In a Commentary of mine dated last 3 May, I wrote the following:

[I]f FISA, indeed, allows the Administration (any Administration!-- regardless of Party or ideology) to do what the current Bush Administration says it can do, then FISA itself is unconstitutional (as Congress cannot, by statute, delegate to another branch of the Federal Government power it itself does not constitutionally have; neither can Congress evade its duty to protect [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, as is declared inviolable by the 4th Amendment to the Federal Constitution). Even were the delegation of authority to the Executive Branch under FISA to be seen as even the least bit defensible (something I don't think it really can be), the President cannot evade his Oath of Office to "preserve, protect and defend the Constitution of the United States" (always keep in mind that, while every Federal officer- elective or appointive [including those who enlist in, or are inducted into, the military]- takes an oath to "defend" the Constitution [again, the very thing that makes the United States of America a Nation], only the President takes a higher oath to also "preserve and protect" it).

While the President, of course, must do- in order to fulfill his Oath of Office- whatever he can (constitutionally) to defend the Constitution, preserve the Nation and protect its residents by defending the Nation against potential terrorist attack and answering any actual terrorist attack (whether through judicious deployment of military assets and/or proper application of Due Process of Law, whichever might be most appropriate), he is also charged with doing so without unnecessarily abridging the Rights of the People (including that very Right held inviolable by the Constitution's own 4th Amendment). Indeed, it seems clear to me that the Framers of the Constitution expected the President to, in the course of his "tak[ing] Care that the Laws be faithfully executed" (as is required of him in Article II, Section 3 of the document), include within those "Laws" that very "Supreme Law" specifically defined in that document's Article VI as [t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States.

Put another way, even where Congress- by statute signed into Law by a predecessor (or passed again over a predecessor's veto)- permits a President to do that which is unreasonable (hence, unconstitutional), the President is expected to apply- "to the best of [his] Ability" (to quote from another portion of the Presidential Oath)- his own "Rational Basis" test and say "no, even with enabling legislation, I still can't do that which is unconstitutional" instead of, as has so often been the case with the current Chief Executive and his Administration, rather knee-jerkingly passing the onus back to Congress on grounds that, by law (though not necessarily constitutionally [the two are not always one and the same]), Congress allowed his Office to do it in the first place! Claiming that the words "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States" (from the very beginning of Article II, Section 2 of the U.S. Constitution) gives the Executive Branch some rather vague, ill-defined power to run roughshod over the very Rights the entire Federal Government together has a duty to secure only further exacerbates the problem!

At first glance, one might think- upon reading the above- that I myself am advocating the Co-Equal Branches theory (after all, in this very quotation from my own work, I call upon Congress to not "evade its duty to protect" 4th Amendment Rights against Unreasonable Search and Seizure and I express the notion that the President should "apply- 'to the best of [his] Ability' (to quote from another portion of the Presidential Oath)- his own 'Rational Basis' test and say 'no, even with enabling legislation, I still can't do that which is unconstitutional' "). But all of this begs the question of what happens should Congress, indeed, evade its duty to protect 4th Amendment Rights and the President, in fact, thereafter "unnecessarily abridg[es] the Rights of the People (including that Right held inviolable by the Constitution's own 4th Amendment)"?

Put another way: What if *I* were to discover my phone is being wiretapped as the result of such a warrantless "search" and I go to the proper court with reasonable legal arguments to the effect that this might actually be in violation of the 4th Amendment to the Constitution? Is the immediate reaction of the court- even before a hearing is held on the legal issues involved- supposed to be "sorry, but we aren't even allowed to apply the provisions of the Constitution to legal cases brought before us"?

More to the point: what if the court actually hears my case in this hypothetical example and rules in my favor- handing down a decision that my 4th Amendment Rights were, indeed, violated? Mr. Stremsky's argument would be, based on what he has written, that the Congress and the President- if they don't think the court is correct- should simply ignore the court's decision and just keep on violating my Civil Rights and Liberties: in which case, his own complaint above that "[m]ost of our citizens do not realize how lucky they are to live in this country. Most people think because they have freedoms now, they will have freedoms in the future" wouldn't all that much matter because, in the hypothetical I have just outlined, a freedom I once had (that against Unreasonable Search and Seizure) would no longer exist and, further, would have ceased to exist as the direct result of constitutional constructions Mr. Stremsky himself would allow--\

as would the Co-Equal so-called "Madisonian" jurisprudential theory--

as would also the "Jeffersonian" concept of Legislative Supremacy--

but, most assuredly, not "Hamiltonian" Judicial Review!

We are here back to my argument as regards Rights versus mere privileges:

If the Legislative branch (in this case, Congress) can so be allowed to fail to defend one's Rights against Unreasonable Search and Seizure- where not also be allowed to effectively take away said Rights- then, indeed, one has no such Rights and the 4th Amendment might as well be printed on paper that one could then primarily use to line the bottom of a birdcage!

And, where such is allowed as regards one set of Rights, then such is allowed as regards all Rights- whether such allowance be under the concept of Legislative Supremacy or Co-Equal Branches. For, in such a theory of constitutional jurisprudence, Rights thereupon cease to be any different from privileges: they then would both effectively be mere grants by Congress or a State's legislature (since Rights as well as privileges could, in such a case, also be taken away by same), rather than Rights being more highly protected than privileges by virtue of being "Creator-endowed" (that is, accruing to one in his/her capacity as a human being and thus not being granted- hence also not liable to dissolution- upon mere whim of governmental fiat).

I will close by commenting on only one more thing in Mr. Stremsky's response above to my response to his original 'vox Populi' on smoking bans and the role of government and that involves where he wrote: "People should realize that smoking in restaurants is protected by Amendment Nine of the United States Constitution. If you are over 18 years old and the United States Constitution itself does not say you cannot do something, you should be allowed to do it when it harms you as long as it does not harm anyone else because of Amendment Nine of the United States Constitution".

My previous response to Mr. Stremsky's original 'vox Populi' on the subject of banning smoking in restaurants already well explains why I do not agree with him that the 9th Amendment at all can be construed to permit smoking in restaurants and/or to strike down such a ban as being unconstitutional (smoking- ANYwhere!- is, in and of itself, not at all covered by the 9th Amendment because smoking is a privilege and not a Right: "others retained by the People" means 'other Rights', not 'other "privileges" ')

Two more quick points, if I may:

1. 18 is, indeed, the Age of Majority (the age at which, under the law, a person is considered to be an adult) in most of the States of the Union... but not in all States! In addition, 21 is the drinking age throughout at least the vast majority of the country (so, obviously, States can prevent- in this case, 18, 19 and 20 year olds- from do something potentially harmful to themselves even if it does not necessarily harm others). As regards smoking: my own State of New Jersey has set the age at which one needs to be in order to legally purchase, possess and use tobacco products at 19; so, in my State, no 18 year old can legally smoke- even at home- and there seems to me there is no way the 9th Amendment can be used to do anything about it (again, the 19 year old is granted the privilege of smoking tobacco products- the 18 year old is not- at least here in New Jersey).

2. As regards a smoking ban in restaurants per se: what if cigarette smoke is, in fact, harmful to others? Clearly, that is the argument of those who wish to ban smoking in restaurants and, if they be correct, then Mr. Stremsky's own argument that "you should be allowed to do it when it harms you as long as it does not harm anyone else because of Amendment Nine of the United States Constitution" would no longer even be at all relevant...

so, is Mr, Stremsky right in that smoking in restaurants is not harmful to others (thus, at least according to his own argument [though not my own], constitutionally protected)?

or, instead, are those who want to ban smoking in restaurants (that which Mr, Stremsky himself opposes) because they say it is harmful correct?

We are here, once more, back to a political- as opposed to constitutional- argument in any event.


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