If one can say the pandemic has had any positive side effect, it has been to help us focus on what the loss of liberties looks like. Such losses do not occur immediately but erode over time as people become increasingly comfortable with government claiming to know what is best for us.
The Biden administration is proceeding on a downward spiral that has ended in lost liberties in nations of the past by seizing increasing amounts of power for itself through a slew of executive orders, without the consent of the people or Congress.
When announcing his gun control executive orders last week, President Biden referenced the Second Amendment and the right to keep and bear arms. He claimed his orders do not infringe on that right, but added, “No amendment is absolute.” That is concerning.
He also announced the appointment of a Presidential Commission on the Supreme Court. A White House press release sought to obscure its real goal — court packing: “The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals. The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”
The court’s role is stated in the constitutional system and in The Federalist Papers. In Federalist 81, Alexander Hamilton got to the heart of the argument when it came to an all-powerful Supreme Court that could override Congress, effectively making its own laws.
If the U.S. Supreme Court were allowed such power, Hamilton said, it would produce serious negative outcomes: “The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous.”
In a speech last week at Harvard, Justice Stephen Breyer, a Bill Clinton appointee, warned that the main reason the public has mostly trusted court rulings is the perception “the court is guided by legal principle, not politics.”
No wonder some on the far left are demanding that the 82-year-old justice retire so President Biden can nominate someone more to their liking.
This effort to re-shape the court in ways that would sustain liberal policies is an affront to the Constitution and “we the people.” As a Wall Street Journal editorial noted, the commission contains 36 members “who tilt markedly to the political left.”
Senate Minority Leader Mitch McConnell, Kentucky Republican, was right in his reaction to the Biden commission: “This faux-academic study of a nonexistent problem fits squarely within liberals’ years-long campaign to politicize the court, intimidate its members and subvert its independence.”
President Franklin Roosevelt tried packing the court to advance his policies. Thankfully, he failed.
In a 2014 speech, the late Justice Antonin Scalia said: “The Constitution is not a living organism. It’s a legal document, and it says what it says and doesn’t say what it doesn’t say.”
The Biden administration and the left want the power to make their own laws, without constitutional restraints. They believe the Constitution is what liberal judges say it is and their goal is to place more judges who share this belief on federal benches.
• Cal Thomas, a nationally syndicated columnist, is the author of “America’s Expiration Date: The Fall of Empires, Superpowers and the United States” (HarperCollins/Zondervan, January 2020).