In my earlier article on the First Amendment, 912, and the Continental Congress 2009, I suggested that Article IV, or the “Guarantee Clause”, was an important underlying principle of protecting our ‘republican form of government’, and could prevent the assault on our current Constitutional Republic by fiat or decree by Congress or the Executive. Specifically, Article IV Section 4 states:
Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
I initially read this to mean that the Federal government cannot move this country to a socialist form of government, because it was required to ensure to each state a government that was a republic.
In reading further, however, another layer of assault on our Constitutional Republic is revealed, as the Courts employ the ‘judicial invention’ of the ‘political question’ to avoid court review of the exercise of governmental power:
As with other judicial doctrines created by the Court, the rule is interpretive and self-imposed. It is neither a result of legislation nor a part of the U.S. Constitution, although it appears to emanate from the Constitution’s Separation of Powers. The Court created the political question doctrine as part of the broader concept of justiciability—the issue of whether a matter is appropriate for court review.
The doctrine was first articulated in 1803 by Chief Justice Roger B. Taney:
“federal courts should leave certain constitutional questions to the legislative and executive branches in any matter that is “a political question to be settled by the political power.“
Otherwise known as, ‘political process’. When the We the People Foundation’s petitions for redress under the First Amendment were dismissed by a federal court under the ‘political question’ doctrine, founder Bob Shultz rightly critiqued that the First Amendment rights of American citizens under the U.S. Constitution were not guaranteed, but were instead up for a vote by the very government it was petitioning.
While the Court has not ducked all publicly sensitive issues (see rulings on Abortion and Affirmative Action), the blatant dismissal of WTP’s First Amendment right is troubling. The Courts would appear to have the discretion to dismiss important public questions, and Constitutional cases, under the guise of the ‘political question’. This sounds similar to the use of the judicially invented doctrine of ‘standing’ to avoid the Constitutional question presented by the eligibility cases.
In the important case New York v. United States [112 S.Ct. 2408, 2432–2433 (1992)], Justice Sandra Day O’Connor cited Section 4 of Amendment IV as limiting the federal government’s ability to commandeer state officers to implement federal law. In addition to Gregory v. Ashcroft[ 501 U.S. 452, 463 (1991),
The opinions draw support from a powerful argument for utilizing the guarantee clause as a judicially enforceable limit on federal power (Source: Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1 (1988)).
The Assault Revealed
Utilizing both the ‘political question’ and the ‘standing’ issue, the Courts seem to be, at their discretion, dismissing key Constitutional questions, including the WTP’s petitions to the government under the First Amendment and legal proceedings under Articles II and IV of the Constitution.
It has been implemented over history under the guise of ‘checks and balances’, but appears to be a convenient tool for ‘stacked’ courts to avoid key questions or upsetting the true balance of power right now. It certainly seems a potential avenue to influence judges. At the very least it creates a power vacuum into which nefarious politicos readily enter.
The Kerchner v. Obama case, which was discussed extensively here, has not been granted a decision yet by the Court, although it was promised in early August. This is late by the standards and practices of the Court and by the Federal Rules of Civil Procedure. Although Obama has not raised the ‘political question’ in his defense, I am sure he has thought about this argument. What do you want to bet that the judges in the eligibility cases are thinking about using this tool in ducking a Constitutional question, or delaying until sufficient Supreme Court justices are in place to secure a ‘political resolution’ to the issue?
Indeed, our hapless senators and representatives, the foolish obots, and the democrats continue to insist that ‘the election is over, get over it, he’s our president’, as if our very Constitution was subject to the ballot box. The judge who dismissed the Hollister case cited ‘twitter’ as definitive proof that Obama had been vetted.
This is the subtle use of the ‘political question’, which now seems applicable to an array of dangers we face as Obama and the democrats nationalize the banking and auto industries, and attempt to do the same with the health care and energy industries. This is a move to change the fundamental basis of our government from one of a Republic, and capitalism, to a ‘democratic’ socialist economy run by ‘majority rule’, or ‘elite’ rule, or ‘government rule’.
When challenged in court, will health insurance reform, which may be at its core unconstitutional, or the cap and tax legislation, or attempts to nationalize industries, be ruled as ‘political questions’ and not subject to review by the Courts? Is the Constitution up for a vote? 😕
What is the line between Obama’s discretion as the so-called Executive, traditionally covered by ‘the political question’, in foreign policy, and purposeful disarmament of America to enable our enemies to attack us (treason)?
Like Paul Revere, we are looking for signs of which way they are coming, ‘one if by land, two if by sea’. If you begin to see more and more Constitutional issues being thrown out by Courts using the ‘political question’, or even suspicious uses of ‘standing’, understand that the Courts are infected too. Yes, as if we didn’t already know that.
But also, these signs just require us to be vigilant in thinking everything all the way through. Legal preparation, cases, and tactics must be impeccable. And, our strategies must be coordinated, effective, and aimed at outmaneuvering them on the avenue by which they come.