Our Rules of the Game: US Constitution


Activist Judges Need Not Apply
Our Rules of the Game: US Constitution

USA – -(Ammoland.com)- Justice Anthony Kennedy's retirement, leading to President Donald Trump's nomination of Brett Kavanaugh to the Supreme Court, has thrown progressives, the Democratic Party and the news media into an out-and-out tizzy.

The online magazine Slate declared, “Anthony Kennedy Just Destroyed His Legacy as a Gay Rights Hero.” The New York Times' editorial board said about a second Trump court appointment, “It is a dark moment in the history of the court and the nation, and it's about to get a lot darker.

It's indeed a “dark moment” for those who've for decades used the courts to accomplish what would have been impossible through federal and state legislatures — such as same-sex marriage, abortion, and preferences with regard to race and sex. With this Supreme Court pick — and possibly another during his term — President Trump can return us to the Framers' vision of the judiciary — a vision that's held in contempt by many liberals and conservatives.

The U.S. Constitution represents our “rules of the game.” Supreme Court justices should be seen as umpires or referees, whose job is to enforce neutral rules.

I'll give a somewhat trivial example of neutral rules from my youth; let's call it Mom's Rule. On occasion, my sister and I would have lunch in my mother's absence. She'd ask either me or my younger sister to divide a last piece of cake or pie. More often than not, an argument would ensue about the fairness of the cut. Those arguments ended when Mom came up with a rule: Whoever cuts the cake lets the other take the first piece. As if by magic or divine intervention, fairness emerged, and arguments ended. No matter who did the cutting, there was an even division.

That's the kind of rule we need for our society — the kind whereby you'd be OK even if your worst enemy were in charge. By creating and enforcing neutral rules, we minimize conflict. Consider one area of ruthless competition where that's demonstrated — sports. The 52nd Super Bowl featured the Philadelphia Eagles and the New England Patriots. A lot was at stake. Each player on the winning team would earn $112,000; losers would get half that. Plus, each winner would get a Super Bowl ring that might cost as much as $40,000.

Despite a bitterly fought contest and all that was at stake, the game ended peaceably, and winners and losers were civil to one another. How is it that players with conflicting interests can play a game, agree with the outcome and walk away as good sports? It's a miracle of sorts. That “miracle” is that it is far easier to reach agreement about the game's rules than the game's outcome. The rules are known and durable. The referee's only job is evenhanded enforcement of those rules.

Suppose football's rules were “living” and the referee and other officials played a role in determining them. The officials could adjust the applications of the rules. Suppose the officials were more interested in the pursuit of what they saw as football justice than they were in the unbiased enforcement of neutral rules. In the case of Super Bowl LII, officials might have considered it unfair that the Eagles had never won a Super Bowl and the Patriots had won five. If officials could determine game rules, team owners, instead of trying to raise team productivity, would spend resources lobbying or bribing officials. The returns from raising team productivity would be reduced. Also, I doubt that the games would end amicably. The players probably wouldn't walk off the field peaceably, shaking hands and sharing hugs, as they do now.

We should demand that Supreme Court justices act as referees and enforce the U.S. Constitution. If they don't and play favorites with different groups of Americans, as we've seen, the potential for conflict among the American people is enhanced. Who is appointed to the high court becomes the all-consuming issue. The question is not whether a justice would uphold and defend the Constitution but whether he would rig the game to benefit one American or another.

Walter E. Williams
Walter E. Williams

About Walter E.Williams

Walter E. Williams is a professor of economics at George Mason University. Williams is also the author of several books. Among these are The State Against Blacks, later made into a television documentary, America: A Minority Viewpoint, All It Takes Is Guts, South Africa's War Against Capitalism, More Liberty Means Less Government, Liberty Versus The Tyranny of Socialism, and recently his autobiography, Up From The Projects.

  • 15 thoughts on “Our Rules of the Game: US Constitution

    1. Greed, ego, and envy lead to political parties … the day after the Constitution was signed. Greedy, egotistical and envious people looked at the way the Constitution sets up our government and figured out how to make profit, big profit. To insure success, they need the political parties. Parties, every to this day, guarantee results, election after election, the elected are in the power position, election after election.
      Lobbyists provide the profit. Judges provide the stamp of approval, or not, thus the parties have to control that, too.
      We the People are kept in the dark, kept out of the system by costs, disarmed, and have no way to fire our governmental employees even if we did find out what is going on. With modern electronic voting machines they do not even need our vote anymore.
      We the People must regain control of government, institute new and harsher controls on our employees or just accept the fact that our children will be serfs to the elitists that control government, who controls us through bureaucracies.

      1. The articke nakes a very good analogy.

        @WB, I bought and received on Monday “Our Lost Constitution: The Willful Subversion of America’s Founding Document” by Senator Mike Lee. You mentioned it in a post, so I picked it up.

        1. @ Eric, Sen. Lee explains every point where the S. Ct. went wrong… every case that was meticulously avoided in law school.

          1. @WB, I’m looking forward to reading it. Right now I’m reading “U. S. Marshals : inside America’s most storied law enforcement agency”. By Mike Earp with David Fisher.

      2. To push it even farther with the Supreme Court, they have a branch of government they already belong in, The Judicial Branch; not the Legislative Branch. Legislatures make the laws and the judicial branch interprets the laws, so who and how were they ever allowed to reach over into the legislative branch and trump them on decisions blows my mind! Why Isn’t anyone doing something about this!? That is the irony of all of this! How have they gotten away with this? Our government is broken into three distinct branches, which all do three different, yet important things. Not only is the Judicial Branch getting away with swerving out of their lane, but the legislative branch now thinks it’s okay to get wobbly with their duties and have been trying to impeded over into the Executive Branch. Yes, STICK TO THE UNITED STATES CONSTITUTION! Many people need to get a grip and re-read it because they’re acting a fool!

        1. The government has grown far beyond the enumerated powers. The three branches of government have been usurped by the bureaucracy and the separation of powers is gone. All powers – executive, legislative, and judicial – are now consolidated in federal bureaus and agencies. It’s now like the Cold War. They are at war with us while we pretend that peace reigns. We need a Ronald Reagan to kick us in the pants and put us on the offensive before its too late. I fear it may already be too late…

        2. The Congress, President, many federal judges, federal agencies, states, counties, and even city councils are just plain ignoring the Constitution. Federal agencies are given the power to make “rules with the force and effect of law”. That is blatantly unconstitutional because only Congress can make law. Just double talk. Congress can not even get an agency member to tell the truth. It is Congress’ fault, though, because they created the agency.
          Congress also creates unconstitutional laws just because one party or the other has fifty-one votes.

          The POTUS tells his agencies what rule to make and how to word it, how to enforce it and the chief exec., and his minions, bypass Congress altogether. The federal judiciary evades the limits of the Constitution, no need to go into that.
          Over more than a hundred years of Presidential, Congressional, Judicial, and bureaucratic corruption of our Constitutional Civil Rights, meant to permanently and completely preempt government power, have been stolen from us.

          But we still have the advantage of secrecy, anonymity, and operational security. We must be an organization of one.

    2. Problems will still arise when there’s a situation not covered by existing rules. In baseball, for instance this was more likely to happen in the minor leauges, at which point the umpires would have to make a ruling that could wind up being propagated all through the sport. (How many players can be tagged out on the same base at the same time, was an example I recall being told.) But in the moment, there is no rule and so the umpires are indeed called on to determine what’s fair.

      Something similar can happen with our judicial system … and in fact in an age of technological evolution (which also drives deep societal changes) that’s just about guaranteed to happen. So … what do you do when there is no guidance or rule to work from? I’d argue that those situations are exactly the ones most likely to wind up in front of the Supreme Court. Or they would be if lower courts were more objective and unbiased, but that’s another discussion and article.

      1. But the Constitution, AS WRITTEN, leaves so iittle wriggle room it is comprehensive enough. then we’ve some of the writings of the period to help sort out what might appear to be ambiguous.

        Its pretty simple,,, if its not specifically spelt out and put under the authority of FedGov, it falls to the states and FedGov MUST butt out. Then each state must deal with it, and each one has made their own set of rules which bind within their boundaries. But the corrupt and powerhungry federal courts, most all of them, have declared themselves the arbiter of what goes on within each of the states. THAT is not in the Rules. So the citizens of the State of Texas decided some years back that sodomy would be criminalised. Someone got their knickers twisted over that, and somehow the SCOTUS declared they could not do that. From WHENCE came FedGov authority over a state matter?
        WHY was Peruta ever an issue? Shall not be infringed is binding at any level of government, and California’s wretched system of denial at will of a man’s right to arms is wrong on its face. California have no compelling interest in the denial of any law abiding person’s right to arms any time any place. Even the requiring of a Mother May I Card to “lawfully” carry a handgun is an infringement counter to the US Constitution.

        I really think the problem arises in the lower courts who most often go rogue, and are not brought to heel per the Rules of the Game. Two bit District COurts take up cases over which they’ve no jurisdiction, pontificate upon the facts and outcome, and it is quietly accepted because them doods in the black nighties said so, end of the matter. Since nearly every Supreme Court judge has come up through the ranks, how about this for a cure: Congress, rather than asking what a nominee’s personal views are on every little “issue”, how’s about checking their record and learning how they judged even whether to take up a case, or to dismiss with prejudice on the basis of a constitutional matter.
        Example: two fairly recent judgements in Seattle are informative: some years back the City decided to impose a gun ban in certain public places, contrary to state laws, which preempt any more restrictive local law. The city sued…. it went up before a court presided over by a woman with a well known and strong bias against gun ownership. We all thought the law would stand as she was thought to rule upon her personal bias. She amazed and pleased us all as she ruled aright… state law preempts, and does not ban in the types of specified places. The ban is illegal, and stricken. SHE played by te rules, fairly imposing them on the out-of-line city. The there is another corrupt judge in Seattle.. Robart is his name. When the case wanting to stopTrump’s EO on restricting travel, he took it up eagerly.. and illegally. Two states, AND a sitting president were the only named parties to the matter, and Art 3 Sec 2 Par 2 plainly declares that in ALL such matters can ONLY be taken up by SCOTUS on original jurisdiction. At the very least, this judge should never be given another seat on any court. He SHOULD have been sanctioned and debenched, and possibly disbarred as well. HE made up his own rules and played by them. In another administration, this corrupt character may well be given a higher court position, “graduating” from his lowly District Court seat. He should be charged with felony perjury for swearing his oath of office then doing otherwise.

        Until the lower courts are cleaned out of the trash, the High Court is unlikely to change much. Decisions such as Kelo, Filburn, Lawrence, Peruta, Obergefell, would plague us no more.

      2. Perhaps a FEW oddball (technological-evolution type) issues MAY finally get to the Supreme Court, that’s true. But the Constitution is so well written that it always provides at least some guidance [perhaps not a hard or specific rule, but general guidance at the very least] on all issues.

        But those are NOT the cases “most likely to wind up in front of the Supreme Court.” The most common cases are determinations of the legality of social or governmental attempts to arbitrarily define (circumvent, in most cases) the Founders’ intent on some specific issue (personal freedoms such as abortion or same-sex marriages, or affirmative-action preferences, for instance).

        Cases that involve judicial breaking of “new ground” – which actually IS legislative action by courts – must (legally and rightfully) be kept to being the extreme exception, not the general rule.

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