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  • Philip Drucker

Communique "Et tu, SCOTUS?" 9-4-2021


Who’s afraid of the big bad SCOTUS? Their recent unbelievably disingenuous to say the least decision, or non-decision, or something in between, regarding the right of Texas to eradicate a woman’s right to an abortion, as protected under Roe v. Wade, and at the same time allow Texas to go back to the 1850s and initiate the “bounty hunter” as good citizens doing the work of the Lord, in those days also a good cover for slave owners to recover their property, and since there are no slaves to be hunted down and returned to their masters, the racist and religious zealots of what they still call in Texas their “legislature” and “governor” have modernly managed to make pregnant women seeking to have an abortion the targets of this latest round of Texan ignorance, arrogance, miscalculation and downright dumb as a bag of hair antics that for all intents and purposes is backfiring in an epic display of under think and overreach.


That’s right. I said that Senate Bill 8, aka the most restrictive anti-abortion law in the nation, prohibiting most abortions after roughly six weeks of pregnancy and makes no exceptions for pregnancies resulting from incest or rape, is going down the drain and will likely be handed over to the Senate while possibly enlarging the House Majority to the Democrats in 2022.


Oh, it was always a neat trick for the idiots in the Federalist Society and their mischievous miscreant brain dead enablers, the most well-known useful idiot being Mitch McConnell, to take over America by packing the nine justice court with three incompetent and highly corrupt “jurists” (I use that term lightly) and hacking the highest court of the federal Judiciary Branch, the Roberts’ Court, now being a sure contestant if not winner in the competition for best SCOTUS ever signed, sealed and delivered, I’m yours! in American history.


However, for what might appear to be a somewhat intelligent, well-read group of legal terrorist branch of the American Taliban has overlooked is they were and will continue to fight through the courts, at the SCOTUS and lower levels at a steep and I believe insurmountable Constitutional disadvantage. Why? Let’s go back to the beginning of our story.


Let’s call day one of our inquiry the day, March 1, 1791 the original Articles of Confederacy were ratified as America’s first stab at a federal government and a Constitution to guide it. By taking a peak at the preamble, the thirteen articles and conclusion sections we can glean what our Founding Father’s thought the proper role of the judiciary should be in a centralized federal government. The answer is in fact astounding.


Why? Well, even a cursory glance will reveal an embryonic version of the Legislative and Executive Branch but lo and behold, there is no “Article III” Judiciary section or even reference or mention to be found, anywhere. The purposeful omission of the judiciary speaks volumes, doesn’t it? Why yes, I believe it does.


One of the hallmarks of the American DNA is our basic mistrust of the courts. The colonial courts of King George were nothing but kangaroo courts, set up to assure that the king could not lose. Ever wonder where the individual clauses in the Fifth and Sixth Amendment come from? For the most part, they are based on actions that were common practice in pre-independence America.


In the Court of George, there was no individual right for an American defendant to a speedy or fair trial, and if we throw in the suspension of habeas corpus rights, no need to inform the defendant of his or her crime, or to even charge them with one. Languishing in jail for an unspecified amount of time was par for the course.


Double Jeopardy was not available with the biggest impact being the Monarchy could try you for the same crime or crimes as many times as it liked, until you, guilty or not, were convicted. Right to counsel? Privileges against self-incrimination? Confront witnesses? Forget about it. It wasn’t in the mix. I do not feel it an understatement that what we call due process of law, notice and the right to be heard were for all practicality, at best, subject to the whims of the Crown.


So, can we say that We, the People have been suspicious about rigged courts? You bet. And guess what? We still are, and I dare say these days for many a good reason. Yet, when it came to drafting the US Constitution, the Founders did find the necessity to include a judicial branch with instructions for how it operated found in Article III.


Within Article III, we find a truncated version of the current Federal Court system. Their jurisdiction as to what cases they could hear was quite limited and mostly to appellate cases and controversies arising under the Constitution. Indeed, from the very structure of the Constitution, Article I, the Legislature who make our laws being the most important branch, to the Executive branch, with the President being the number one enforcer of our laws, to the end of the food chain and little weenie Article III Judicial branch.


The separation of powers was certainly a factor, yet, is it true all branches were created and to be taken on an equal basis? I would say not. Why? Well, guess what? Let’s go peruse that copy of the Federalist Papers we all keep on our desk for just such an emergency and see what the Founders themselves had to say.


In a series of six separate articles, Federalist Nos. 78-83, no less than Alexander Hamilton, the guy with the cool musical laid out his vision for the federal courts. A good starting point for determining the relative status between the three branches of government is found in No. 78.


Federalist 78 is clear evidence that although he favored an “independent” judiciary, it would be by far the weakest of the three. To paraphrase, Hamilton wrote in the Federalist Papers 78, the judiciary has “neither the sword” (the executive branch’s power to compel action) “or the purse” (the Congress’s power to appropriate funds).


Further, in matters related to the powers of the various branches, Hamilton identifies another weakness and hence inequity of power between the three branches stating the Courts had "neither FORCE nor WILL but merely judgment."


So, if I’m the Congress or the President, if the SCOTUS is yacking their jaws all day long, and if push comes to shove, well, the Court can make judgments all day long, but as they say on playgrounds across America, when it comes to enforcement, it’s you and what army? With of course the President being the Commander in Chief with the Congress responsible for its funding. Got it?


This, if we include the Constitutional mandate that all powers originate with We the People, and We, the People want abortion rights for women, voting rights for us all, the right to make a decent living in a modern society, address climate change and pursue our own happiness, this all leads us into the situation we have today.


So, if we assume as our starting point the above and that the SCOTUS has crossed the Rubicon of separate, independent, but hardly equal branches of power, who are you going to bet on? The guys with the Army, or the ratbag, sold us out for it looks like money, religious intolerance and beer, as the Courts have been doing since colonial times, I know which numbers of the roulette wheel I’m betting on and it ain’t III. You?


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