Well another Supreme Court of the United States judgement – and yet again SCOTUS has used the Constitution for toilet paper.

In the 19th century there were a few terrible judgements (Dred Scott, Second Greenback Case….), but mostly the Supreme Court had some respect for the text of the Constitution (the Common Law way of dealing with a contract or other legal document) and the intentions of his writers (the Scots or Roman Law way of dealing with a contract or other legal document).

However, in the 20th century Law Schools such as Harvard stopped even teaching about the text of the Constitution or the other written works of the Founders – instead concentrating on Case Law (with each insane judgement being used as building block to create even more insane judgements).

For example, no Founder (not even Hamilton) claimed that the words “common defence and general welfare” at the start of Article One, Section Eight of the Constitution of the United States gave the Feds a “general welfare spending power” – on the contary they all agreed that it was a preamble giving the objectives of the specific spending powers that follow it. And for those who demand specific text (rather than just the published intentions of the writers of the legal document) – there is such text, the Tenth Amendment. If there is a “general welfare spending power” then the Tenth Amendment has no meaning.

However, the Supreme Court goes happily on declaring that any spending that is for the “general welfare” is Constitutional – and any tax that finances this spending is Constitutional also. They do not base this on the intentions of the Founders (the Scots or Roman law way of dealing with a contract or other legal document) or on the text (the Common Law way of dealing with a contract or other legal document), they base it on Case Law – i.e. a load of leaking buckets (judgements that disregarded the Constitution) piled on top of each other.

This has been the norm since the “Four Horsemen”  were defeated in the 1930s (personal favourate Justice Butler – as he was standing against unconstiutional collectivism even before the New Deal, for example in “Buck V Bell”, where all but Justice Butler held that a violent attack to mutilate a woman, who had committed no crime, was Constitutional if a State felt like doing it – 9th and 14th Amendments? what 9th and 14th Amendments).

Today the Federal government can basically spend whatever it likes on whatever it likes, and pass any economic regulation it likes – the Constitution  is essentially dead (as written – not the weird “Case Law” Constitution that has virutally nothing to do with the text that was written by the Founders). There are limits on some regulation powers (for example on freedom of speech and on firearms), but the position that Congress can only regulate “interstate” commerce is dead (it is enough that your production or trade might “effect” interstate commerce) and, of course, the word “regulate” no longer means “make regular” (why should Judges bother to learn 18th century English – when they have sworn an oath to preserve and defend an 18th century document), regulate now means “control – strangle”.

And on spending – the Constition makes no mention of healthcare (the Federal government has no Constitutional powers in this area), but no matter it is “general welfare” spending (see above) and any tax is justified to fund “general welfare” spending. For example, the only limitation in today’s judgement was that the Federal government could not threaten the States to get them to increase their own Medicaid spending (that was it). Even the dissenting Justices accepted that the Feds can spend any amount of money they like, or whatever they feel like, and that if something is a “tax” it is is O.K. (they just denied that the money taken by Obamacare is a “tax”). Of course the Constitution says that a tax has to start in the House of Representatives (the “Affordable Healthcare Act” was introduced in the Senate) and the money in Obamacare is called a “penalty” not a “tax”in the statute, but if you think a modern Chief Justice cares about the text of the Constitution (or even the text of specific statute) you have not been paying attention.

In short (as stated above) the United States Constitution is essentially dead. So is there any point in actually having a Constitution? Or are those anarchocapitalist libertarians who argue that “government inevitably grows, efforts to limit it end in farce” correct?

Well perhaps. However there is a point that has been overlooked.

In the United States and all other countries that have a Constitution it is entrusted to a Supreme Court appointed by the government in various ways.

Is this not a bit odd? If a Constitution is to have a fair chance to limit a government surely you would not entrust it to a group of government appointed judges?

“But an elected Supreme Court would become the government itself”.

Who said anything about electing the Supreme Court? Although freely elected judges at State level in the United States do have a generally better record than judges appointed under the “influence” of (establishment leftist dominated) State Bar Associations.

But a Supeme Constitutional Court does not have to be made up of Judges at all. If its sole rule is to decide whether or not an act of the government is Constitutional, then ordinary people will do. After all a Constitution that is too long or too complex for ordinary people (the sort of people who are still reading centuries old novels – such as the works of Jane Austin, and need no more than a little glossary on words that have changed their meaning over time) then it is useless. And there would still be lawyers argueing both sides of each case – they would just be doing so before a Jury.

A jury without the “benefit” of a long education in “Case Law” – i.e. the series of judgements to subvert the original meaning of a Constition (each more extreme than the last – building on each other like a leaning tower).

Not “enlightened” people  – just people.

If people really believe in the Constitutional rights of ordinary people – why not put ordinary people in charge of upholding them. Why not a jury of randomly selected people for each case.