#Disrupt The So-called Originalists

September 14, 2018 Ellen Buchman

Insights from The Opportunity Agenda

The Founding Fathers, Their Words Interpreted Today and Defeating Kavanaugh.

The Opportunity Agenda joins allies to #SaveSCOTUS and #Disrupt the process of nominating and confirming Brett Kavanaugh to the U.S. Supreme Court. The Senate should not permit President Trump to name the very Supreme Court justice who could determine his fate in the multiple criminal investigations he – and his administration – faces.

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The notion that the President of the United States must not wield unlimited power is not new. The Founders of our country placed considerable value in the establishment of a government that would be accountable to, by, and for the people — not in a central entity. While the Founders’ vision of democracy has thankfully evolved and expanded over time to include more than wealthy white men, this check on power is one of the principles they embraced that remains crucial to this day.

While we recognize the Founding Fathers as being revolutionary for their time, it should also be noted that many of the views and practices they embraced were ill-conceived and appalling: the institution of slavery, the unjust and illegal wars against Native Americans, and the exclusion of women from legal protection and rights, to name a few. At the same time, the Founders were able to develop a roadmap for our country (which was informed by Iroquois Confederacy practices) that was capable of expanding and evolving over generations to encompass those excluded or exploited from power during that era. 

The Founders organized the government into three separate branches – The Executive Branch, The Legislative Branch, and the Judicial Branch – to break with the tyranny they rebelled against. But, the Founders also understood that for this separation of powers to truly work, each branch could not be entirely separated from the other, but rather effectively challenge the others to prevent a resurgence of despotism. These two essential concepts – the separation of powers and checks and balances – work to protect the people from a tyrannical government.

President Trump’s selection of Brett Kavanaugh to serve on the U.S. Supreme Court is a direct threat to this vision and system. In addition to his extreme record on civil and human rights issues, Kavanaugh is on record as stating that a sitting president should not be the subject of any criminal investigation and, thereby, not be held accountable to the very checks and balances envisioned by the Founders and mandated in our Constitution.

A brief review of what two of the Founders – James Madison and Thomas Jefferson – had to say regarding the separation of powers and checks and balances illustrates the urgent necessity to uphold these core principles today.

While Jefferson and Madison were both quite flawed, and in many respects an affront to the values we cherish, we can uplift the tremendous roles they played in conceiving of our country’s system of government. Here are some examples of what they said and how we can and should acknowledge #Resistance as the proper intellectual heir to their thinking today, as the U.S. Senate scrutinizes Kavanaugh’s nomination:

EXAMPLE 1: WHAT THOMAS JEFFERSON SAID:

An elective despotism was not the government we fought for, but one which should not only be founded on true free principles, but in which the powers of government should be so divided and balanced among general bodies of magistracy, as that no one could transcend their legal limits without being effectually checked and restrained by the others.

JEFFERSON INTERPRETED: The people did not fight for a government where a single person rules with absolute power. Rather, American revolutionaries fought for a government where the balance of power was each branch of government that could properly check the power of the other.

WHAT IT MEANS TODAY: If the Supreme Court – the Judicial Branch – and the Senate – the Legislative Branch – will not properly hold President Trump and his executive power accountable, we are in danger of becoming the very government the founders fought against when they rebelled against the king and wrote the Constitution.

EXAMPLE 2: WHAT JAMES MADISON SAID:

“[U]nless these departments be so far connected and blended as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.”

MADISON INTERPRETED: Each branch of government must have appropriate control over the other to impose limits against one branch from exercising unrestrained power.

WHAT IT MEANS TODAY: The role of the justices who sit on the U.S. Supreme Court is to uphold the law and determine how the Constitution applies today. Brett Kavanaugh, who has expressed his view on presidential power as being above the Constitution’s provision for checks and balances, would likely enable President Trump immunity from criminal investigation, and the government would be losing a vital check on President Trump’s power.

EXAMPLE 3: WHAT THOMAS JEFFERSON SAID:

All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government.”

JEFFERSON INTERPRETED: If the same person holds all the power of each branch of government, he can put his interest above those of the people he represents.

WHAT IT MEANS TODAY: If we allow President Trump to obtain effective control over all three branches of American government with appointment of Brett Kavanaugh to the U.S. Supreme Court, the President’s interests will supersede our most cherished freedom. President Trump, who is currently subject of multiple criminal investigations, must not be permitted to name the very Supreme Court justice who could determine his fate of those investigations should they reach the U.S. Supreme Court.

EXAMPLE 4: WHAT JAMES MADISON SAID:

“It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”

MADISON INTERPRETED: Those who hold power are generally inclined to take more than it was intended they should have. In government, one branch’s power needs to be constrained by the other branches.

WHAT IT MEANS TODAY: If the Supreme Court – the Judicial Branch – and the U.S. Senate – the Legislative Branch – do not provide the proper “checks” – e.g., hold accountable, President Trump’s executive power, he will likely be shielded from criminal or constitutional scrutiny and his power will be unchecked. We must #Disrupt the process so that we preserve our country’s values of democracy, freedom and human and civil rights for all. No president should be permitted to be above the law.

EXAMPLE 5: WHAT JAMES MADISON SAID:

“[I]t is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.”

MADISON INTERPRETED: The system of checks and balances only works if government officials will check the power of each other.

WHAT IT MEANS TODAY: Each branch of government must exercise its own independent judgment and should not submit to the will of President Trump out of political opportunism, “business as usual”, or fear. It is every senator’s responsibility to halt consideration of any nominee until the multiple investigations of President Trump have concluded. 

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