The Constitution and Judicial Failure

Let us instead adhere to the principles articulated in the Founding era.

By guest author Dune, Esq.

On June 23, 2022, the Supreme Court of the United States issued an unprecedented ruling in N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022): the right to keep and bear arms is presumptively protected by the Second Amendment, and the burden lies on the government to demonstrate that any restriction of this right must comport with the history and tradition of firearm regulation, specifically the history and tradition around the time of the Founding. While obviously important for firearm owners, the most radical part of the decision was the extreme winnowing of how judges are to interpret the Constitution.

The Constitution, despite all its various provisions, does not contain within itself a method of judicial interpretation. Thus, over the centuries, the various parts of the Constitution have been interpreted in vastly different ways.

For example, contrast the current standard of interpretation set forth in Bruen with the interpretation of the Due Process Clause of the Fourteenth Amendment. Under Section 1 of the Fourteenth Amendment, “No State shall… deprive any person of life, liberty, or property without due process of law.”

Nowhere in the Constitution is “due process” defined; thus judges have derived two different forms of such. First, procedural due process requires government officials to follow “fair procedures” before depriving a person of life, liberty, or property. These fair procedures require the government to afford the person accused, at minimum, notice, an opportunity to be heard, and a decision made by a neutral decisionmaker.

The second type is substantive due process. Substantive due process, from 1897 to 1937, was used to strike down minimum wage and labor laws in order to protect the freedom of contract; however, subsequent Courts have determined that substantive due process entails that states cannot place restrictions on the first eight Amendments in the Bill of Rights, restrictions on the political process, and the rights of “discrete and insular minorities.” (See U.S. v. Carolene Products Co. [1938].)

Under substantive due process analysis, Courts see whether a fundamental right is implicated. Such fundamental rights must be deeply rooted in American history and traditions (beyond that of the Founding era). If the right is not fundamental, Courts look to see whether the government has a rational basis and is pursuing a legitimate end via the regulation (which, in effect, is a blank check for the government to regulate, such as in the area of commerce and labor laws). If the right is fundamental, then Courts look to see whether a compelling state interest is being furthered by the violation of the right, and whether the law in question is narrowly tailored to address the state interest (other than issues of national security, the strict scrutiny test almost always renders victory against the government).

Substantive due process was notably used to justify the right to an abortion, based on the earlier decision in Griswold v. Connecticut, where the Court determined that the criminal prohibition of contraceptive devices for married couples violated the “penumbra,” or rights contained in the shadowy edges of privacy rights contained within the Fourth Amendment.

As shown, the interpretations of the Second Amendment and the Due Process Clause of the Fourteenth Amendment are radically different. Even within the Due Process Clause, different methods of interpretation and standards are used depending on what right is implicated.

Perspective lends clarity to the ridiculousness of this disjointed method of interpretation. Imagine you went back to the reign of Hammurabi and came to a city where one of those great obelisks of law had been erected with the phrase “An eye for an eye, a tooth for a tooth.” The principle of the law and its interpretation were clear: the punishment should equal the crime. One would not expect that a criminal brought before the courts of Babylon for stabbing another’s eye would lose his arm, because such is obviously disjointed with both the text and the principle.

The difference between Hammurabi’s Code and the American Constitution is that the method of interpretation of the Code is clear, elegant in its simplicity. The American Constitution is unclear, appealing to Man’s better nature and citing principles only newly formed in the past few centuries of so-called Enlightenment. However, this notion may not have been obvious to the Founders, as their fellows in political power came from a similar background: Christianized Europe and a mix of newer Enlightenment ideologies touting the inevitability of Progress. Thus, while a Catholic judge from France may hold methods of interpretation vastly different from those of an Anglican Englishman, both have their roots in a religious and ethnic similarity (especially when contrasted with peoples outside of Western Europe) which can, arguably, be synthesized.

However, as time passes, the dilution of the American population with third-world ethno-nationalists, along with recent European liberalia, has resulted in constitutional interpretive methods being ever more unlinked from the American past. In its unclarity, the American Constitution has become subject to a never-ending series of reinterpretations to fit the morality of the time.

The general public is increasingly aware of the abuse of law (through destructive interpretation of the Constitution) by wanton judges. Most recently, the Trump administration was ordered by D.C. District Court Judge Boasberg (yes, he is) to cease immediately all deportation flights of illegal aliens alleged to be part of the Venezuelan gang Tren de Aragua. The order comes from a class action suit brought by five Venezuelan nationals (all in the U.S. illegally). After a pause in the hearings, the Trump administration stated that it was invoking the Alien Enemies Act. During the hearing break, flights containing deportees left Texas. Upon resumption of the hearing, Judge Boasberg verbally ordered the government to turn around the two planes if they were carrying non-citizens, saying that “any plane containing these folks that is going to take off or is in the air needs to be returned to the United States… This is something that you need to make sure is complied with immediately.” Subsequently the Judge issued a written ruling putting a restraining order on any further deportation flights. Ten minutes after the ruling, another flight carrying illegals left for Texas.

The relevant text of the Alien Enemies Act reads:

Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.

– 50 U.S. Code § 21

The AEA has only been invoked three times, in the War of 1812, World War I, and World War II, all times of war. But the actual text of the Act allows for its invocation when there is “any invasion or predatory incursion.” Under any plain meaning interpretation, the inundation of illegals, specifically of those whose sole purpose is to engage in criminal enterprise, constitutes an invasion and/or predatory incursion. Yet, because the Constitution and our laws have no defined method of interpretation, Judge Boasberg’s ruling fits squarely within Constitutional and legal interpretation.

Which brings us back to Bruen. Bruen established a simple, clear principle: adherence to principles articulated in the Founding era. The more the laws of this nation diverge from this method, the more judges like Boasberg will run roughshod over Heritage Americans in favor of their own perverted worldview of twisted egalitarianism. The only way to preserve the Constitution, if it is even worthy, is to use the Bruen method for all laws, thus solidifying the beliefs of our Founders, and Heritage Americans more generally.