The rancor toward President Trump for his choice of Judge Brett Kavanaugh as the next member of the United States Supreme Court is no surprise. Democratic members of the U.S. Senate, the body responsible under the United States Constitution for confirming Mr. Kavanaugh, probably had their Twitter statements pre-written and ready to be unleashed onto cyberspace.
On the other side, Republican senators and voters were already praising Judge Kavanaugh as a strict constructionist, an individual who stays within the four corners of the Constitution when seeking a rationale for deciding whether an act by a party to the controversy before the court violated the Constitution. This type of conservative treatment scares liberals who apparently prefer treat the Constitution as a living document that can be stretched and molded to conform with the social norms and mores of the time.
Progressives have long championed using the Constitution as a tool for creating rights and classes out of thin air much like the Federal Reserve prints cash out of the ether. The past 65 years have seen society segmented by race, sex, sexual preference, religious preference, and commercial classes and the federal courts have been used as the meat cleaver for slicing and dicing American society into not so equal classes, at times not delivering the justice members of these classes seek. In the case of the Supreme Court, its decisions are binding on the entire country, and therein lies the problem. By issuing opinions on areas outside its jurisdiction, the Supreme Court and all its inferior courts have contributed to the creation of a society connected by top down values and laws and an allegiance to a single, inorganic fealty. The Supreme Court and all its inferior courts are contributing to the demise of liberty.
Regarding the federal courts’ jurisdiction, from Article III, Section 2:
“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; — to all cases affecting ambassadors, other public ministers and consuls; — to all cases of admiralty and maritime jurisdiction; — to controversies to which the United States shall be a party; — to controversies between two or more States; — between a State and citizens of another State; — between citizens of different States, — between citizens of the same State claiming land under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens or subjects.
In all cases affecting ambassadors, or other public ministers and consuls, and those in which a State shall be party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.”
The first line of Article III, Section 2, gives an opening to parties that may want to take a local grievance, say between a cake baker and a gay couple in a town in Colorado, and use the federal courts to create a law that becomes applicable to citizens living thousands of miles away from the incident. The rest of the article severely limits the federal judiciary’s involvement in private lives.
I don’t think the limits go far enough.
Ideally, I want to see individuals take back their sovereignty by settling as many disputes as possible privately, outside the State mechanism of a court. If a federal court is going to be involved in solving disputes i.e. those involving diversity of residence, it should, as it does now, apply State law to the controversy. Otherwise, the final appellate body in any intrastate dispute, criminal or civil, should be a State’s highest court. A dispute in Maryland shouldn’t be resolved by a federal court opinion that holds that the opinion is applicable in North Carolina, South Carolina, Virginia, or West Virginia. Federal courts should focus on controversies between the Executive and the Congress; between a State and the federal government; and between the States.
Kavanaugh’s views on abortion would be irrelevant of we knew that the federal court could not create national law out of local controversy.