An Impeachable Admission

You wouldn’t know it from the bulk of its recent decisions, but the Supreme Court is often the last line of defense against government itself. The judicial branch of American government is created and limited by the Constitution. That glorious parchment declares the following about federal courts: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority. The paragraph concludes, as it began, with no criteria by which federal jurists are empowered to rule based on a concern about precedent. The Supreme Court exists to interpret the constitutionality of laws and actions. Period.

While no thinking person truly believes the Constitution has retained the chains Jefferson stated would bind men from mischief, FedGov’s legislative branch at least gives the idea of restraint some lip service. Apparently Supreme Court Justice Stephen Breyer no longer sees the need for this formality.

The AP reports that while speaking yesterday at the Law School of the University of Chicago, Breyer said, “I tend to emphasize purpose and consequences; others emphasize language, a more literal reading of the text, history and tradition — believing that those help you reach a more objective answer.”

If “purpose and consequence” were truly his primary concerns, Breyer would do well to try to wrap his mind around the true purpose of the Supreme Court and the consequences of interjecting personal thoughts into monumental decisions regarding our liberty.

He decided a display of the commandments in front of two Kentucky courthouses was unconstitutional because he concluded their display would cause religious conflict. But he found that removing a similar display that had been in front of the Texas State Capital for years would not, so he ruled it constitutional.

You can almost smell the shameless hypocrisy.

Breyer’s admission is absolutely frightening and may serve to extract the last remaining teeth from our Constitution. While it is sometimes proper to cite prior cases, righteous judicial decisions can only be made about the case at hand. Concern for what may happen as a result of a ruling not only erases the impartiality of a jurist, it castrates good law. Fear of the future at the expense of the present is an emotion that has no place in a courtroom.

While a strong case could be made to impeach the majority of the high court, Breyer’s confession carries the weight of abject danger. Although members of Congress routinely vote based on the alleged merits or demerits of a prospective law rather than appealing to the Constitution, they still bear the responsibility of their oath and can be taken to task for its violation. This could well change after Breyer’s oration. Sentiment and effect may now be seen as the legitimate criteria by which laws are created and their validity decided. Breyer needs to hang up his robe.

Those of us who cling to a hope for restored liberty need to raise a lot of hell about Breyer’s statement and the attitude it reflects. It has been said (erroneously in modern times) that we are a nation of laws, not of men. It must now be shouted that we are a nation of laws, not of opinions and incidental worries.

In keeping with the theme of worrying about consequence, it is disheartening to consider that Emperor George would hand pick Breyer’s replacement.

Artus Register

A self-described "objectivist-leaning libertarian deist," Artus Register became a full fledged libertarian after the 2000 elections. An unapologetic freedom-lover, enemy of the state, trouble maker, and permanent subscriber to the "ain't a dime's worth of difference" ideology, Register enjoys few things more than illustrating the hypocrisy of the so-called "left" and "right." When not bellowing from his cyber soapbox, he enjoys Cuban tobacco, good whiskey, and better debate. He lives with his wife in the American southeast where he works as a privacy consultant.You can contact him, if you must, at minarchist[at]

  1. Nah, the last line of defense is the Jury. Or if you want to be really cynical, the militia :)

  2. Any federal court with a jury is below the Supreme Court. I was referring to defending against the law itself. But yes, I suppose you’re right about the militia, being necessary to the security of a free state and all.

  3. I hate to find myself defending Breyer (and I’m not sure that I am), but I’m not sure how you can read that clause and decide that “The Supreme Court exists to interpret the constitutionality of laws and actions. Period.” For starters, though to my knowledge the Court almost nevers takes the role, it is the highest court of Equity, a role that has nothing to do with Constitutional issues. It’s also empowered to rule on cases arising under the “Laws” and “Treaties” of the United States. In fact, I’ve argued for quite some time that it’s the insistence that the Supreme Court’s only tool for defending liberty is the ability to void laws as unconstitutional that has resulted in the current bastardization of the Constitution. Rather than finding a “right to privacy” in the semi-mystical penumbras of the Constitution, cases like Griswold v. Connecticut should have been handled by the Court in its role as arbiter of cases at Equity or on the more narrow grounds of free speech.

  4. It seems to me that the court’s role as one of equity is of uncertain authorization since the passage of the 11th Amendment and subsequent rulings on that Amendment. In fact, I’m not sure why the Court heard Kelo vs. New London or Hiibel vs. Nevada as the 11th Amendment has been construed to prevent a citizen from suing his own state in federal court. The same would certainly apply to a city within a state.
    But the Justices are wildly schizophrenic. One day they will refuse to hear a case, prattling on about “state’s rights” and the next day will rule in favor of unlimited federal power, burying the truth in some madly speculative interpretation of inter-state commerce.

  5. You are correct that the Court has authority to rule on cases arising under the “Laws” and “Treaties” of the United States. But even in this capacity the court should be limited to deciding legality and as the laws and treaties are those “of the United States” the Court’s legitimate power is reconciling the power of government with the liberties of the people.

    Do you see the finding of privacy rights in the 14th Amendment as in Griswold v. Connecticut as something negative? This may be a long-winded discussion. We can continue it via email, if you want. I’d like hear more on your take on the bastardization of the Constitution.

  6. Are you fucking kidding me? Read the first amendment. I’m honestly quite confused right now; but if you are arguing against the seperation of church and state, you should check yourself into a mental institute.

    What a bunch of fucking brainwashed tools…

  7. Did you comment on the right post? What could you possible construe here as an argument against the separation of church and state?

  8. Yes, I think the finding of rights that don’t exist in that manner is negative. (Mind you, I think we ought to have a right to privacy, but the way to achieve that is to make it law either by statute or Constitutional amendment.) “Constitutional rights” based on the whim of judges don’t carry much weight and the finding of rights where none exist degrades those that are explicitly written in the Constitution or Laws. The Constitution is a very simple document, but powerful in its simplicity. The often unrecognized genius of the Constitution is that it doesn’t take a Harvard law degree to understand it. This matter of “interpreting” the Constitution to find penumbral rights or to find limits on actual rights where none exist degrades the document and contributes to the mystical priesthood of the judges, something never envisioned by the Framers.