17 Key Facts Never Mentioned In Supreme Court Confirmation Hearings

When Kentanji Brown Jackson said she could not define what a woman was, she was saying that the “plain meaning” of the words of our Constitution means nothing to her.  She was saying she was ready, willing, and able to ignore or change the plain meaning of the words of the Constitution to change or amend the Constitution to be whatever she wants it to be.

  1. America was never a democracy.  Abraham Lincoln often said, our nation was built on these ideas,  values or “sentiments” of our 1776 Declaration of Independence.  We are all “created equal” and “endowed by our Creator” with certain “unalienable rights”.  Among these are “life, liberty, and the pursuit of happiness”.  To “secure these rights, governments are instituted exercising their just powers from the consent of the governed”.
  2. Our founders never gave government unlimited power to do whatever a majority of voters wanted to do at any given time.  From the very beginning, the powers of our state and national governments were defined and limited by written contracts called charters or constitutions .  Our U.S. Constitution was written in 1787, adopted in 1788, and amended 27 times.
  3. The heart of our U.S. Constitution is Article I Section 8.  It gives these limited “enumerated powers” to Congress and our national government:
    • Regulate commerce with foreign nations and among the several states
    • Coin money and regulate its value
    • Establish post offices and post roads
    • Establish a federal court system
    • Issue patents and copyrights to protect authors and inventors
    • Define and punish piracies and felonies on the high seas
    • Declare war, raise and support armies, provide and maintain a navy
    • Make all laws in the District of Columbia where the federal government is seated.
    • Make laws “necessary and proper” to execute the foregoing powers.
  4. Although our Constitution was written and supported by the most respected and admired people of the time, including George Washington and Benjamin Franklin, Americans refused to ratify it until Ten Amendments called “The “Bill of Rights” was added to more clearly limit the power of our national government.
  5. The Tenth Amendment of that Bill of Rights states: “The powers not delegated to the United States by Constitution, nor prohibited to it by the States are reserved to the States respectively or to the people”.
  6. That Constitution also provides for a Supreme Court. An important function of that court is to decide when some law or other action by the government is not permitted by the Constitution.
  7. The U.S. Constitution is a contract between the American people and the people we elect to run our government. It was written to be understood and complied with by an average American with an eighth grade education.  Judges are to interpret and apply our Constitution the way they interpret and apply all contracts.  That includes using the “plain meaning” of their words as understood by the people who wrote and agreed to them.
  8. The framers of our Constitution knew that changes to our Constitution would be needed in the future. That is why Article 5 allows both Congress and a Convention proposed by State Legislatures to propose changes or amendments to the Constitution.
  9. However, unelected judges of the Supreme Court do NOT have that power. They can only apply and enforce it as they apply and enforce other contracts.  Any appointed judge who ignores or changes the meaning of words in the Constitution they do not like or agree with, is changing or amending it.  This is something only elected members of Congress and State Legislatures are permitted to do.
  10. The race and gender of a judge are completely irrelevant in determining “the plain meaning” of the words of our Constitution or any other contract.
  11. Starting in the 1880’s and 1890’s many Americans embraced socialist, communist, and “progressive” doctrines that were then popular in Germany, Italy, England, and France. These European doctrines rejected the basic values and ideas that created America. They assumed modern, industrial societies had become so big and complicated that ordinary citizens and private businesses could no longer decide what was best for them.  They believed a powerful government of trained “experts” was needed to control the economy and the culture “for the public good”.  These Americans included “progressive” Democrats like Woodrow Wilson and Franklin Roosevelt, and “progressive” Republicans like Theodore Roosevelt and Herbert Hoover.
  12. These “progressives” believed our U.S. Constitution was outdated and ineffective. That is because it did not give the government enough power to fundamentally change America the way “progressives”, socialists, and communists were changing Europe.  However, “progressives” in America knew that most voters opposed their plans to make big changes to our Constitution.
  13. Their solution was to appoint Supreme Court judges who would effectively amend or change our Constitution.  They would do this by ignoring or changing the meaning of its words. In his “Fireside Chat #9” radio speech of March, 1937, Democratic President Franklin Roosevelt described the Supreme Court as part of a “three horse team” who were supposed to “plow the field” for “the “American people” with the President and Congress “in unison”.  Roosevelt said the President and Congress were trying to do what most voters in the last election wanted them to do, but that the Supreme Court was stopping them. Roosevelt urged Americans to support his plan to pack the Supreme Court with 6 new justices to support his programs.  Click here for video of President Roosevelt’s “court packing” radio speech.  Click here for text.
  14. In 1937, most Americans of both parties rejected Roosevelt’s court packing plan, and his view of the Supreme Court. Pro-Roosevelt candidates did poorly in the 1938 elections.  However, because Roosevelt held office for another eight years, he eventually appointed a majority of Supreme Court justices who agreed with him.
  15. In the 1942 Supreme Court unanimously decided the case of Wickard v. Filburn.  Two years earlier, a farmer named Roscoe Filburn was punished for growing wheat on 23 acres of his own land without a permit from the federal government. The farmer claimed that the federal government had no right to control his land, because the farmer was not involved in “commerce involving any other state”.  It was undisputed that the farmer using the wheat he grow on his own property to feed his own family and livestock on that same property.  He did not sell any of it to anybody!  The Supreme Court ruled against the farmer.  It said that even though the “plain meaning” of the words of the Constitution gave Congress power to “regulate Commerce. . . among the several states”, the farmer “affected” interstate commerce by growing his own food, instead of buying it elsewhere.  In short, the Supreme Court amended the Constitution by changing its words.

16. For the next 40 years, both Democrats and Republicans accepted this as normal.  That changed when Ronald Reagan became President in 1981. In 1986, Reagan appointed Antonin Scalia to the Supreme Court.  Scalia alarmed “progressive” Democrats and Republicans by again using the “plain meaning” of the words of the Constitution to decide cases  In 1987, Reagan nominated Judge Robert Bork, who shared that view, to the Supreme Court.  However, Democrats in the Senate used every dirty trick to defeat Bork.  In 1991, President Bush nominated Clarence Thomas, who also shared that view.  Democrats in the Senate used every dirty trick to try to block the nomination of Thomas.  However, Thomas was confirmed over their objections.

17. Last month, Democratic President Biden nominated Ketanji Brown Jackson to the Supreme Court. At her confirmation hearing,  Jackson was asked by Senator Marsha Blackburn if she could define a woman.  Jackson responded that she could not because “I am not a biologist”. By giving that answer, Jackson made it clear that she is willing, as a Supreme Court justice, to ignore or change the plain meaning of the words of our Constitution to change or amend it. If four other justices of the nine member court agree with her, America would not have a Constitution that defines and limits the power of government.  We would only have a Constitution-free government with unlimited power with the Supreme Court working “in unison” with the President and Congress “as a three horse team”.

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  • Seth Grossman

    Seth Grossman is executive director of Liberty And Prosperity, which he co-founded in 2003. It promotes American liberty and limited constitutional government through weekly radio and in-person discussions, its website, email newsletters and various events. Seth Grossman is also a general practice lawyer.

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