A Truly Conservative Judge Pt. 1

by Gerald R. Thompson

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Recently I wrote that there are no truly conservative judges. Since then, people have been asking what a truly conservative judge looks like.

Let’s start with the U.S. Constitution. A truly conservative judge would recognize that –

  1. The Constitution is not a living document, the meaning of which changes over time. Words have fixed meanings, and the words of the Constitution should always be understood in the sense they were understood by the original writers.
  2. The Preamble is not a substantive grant of power to anyone. Promoting the general welfare is merely an overall goal of the Constitution. No law is constitutional which merely promotes the general welfare. Providing for the general welfare (Art I, §8) has an entirely different meaning.
  3. The power to make laws is vested exclusively in Congress. Courts do not make law, judicial opinions are not law (but are only evidence of law), and judges are not the final interpreters of the Constitution. Judicial decisions are binding solely on the parties to each case, and no one else.
  4. All bills for raising revenue needing to originate in the House of Representatives is an absolute requirement, not a mere suggestion. Any legislation regarded as a taxing measure cannot be valid if it originated in the Senate.
  5. The sole lawful purpose of taxation is to raise revenue for spending, not to penalize, nor to implement public policy by encouraging or discouraging behaviors which are otherwise lawful. Congress only has power to provide (spend), not promote (regulate), the general welfare.
  6. All taxes imposed for wealth redistribution purposes are unlawful. Congress lacks authority to compel people to be charitable, or to impose taxes for charitable distribution purposes. Further, Congress lacks authority to determine who deserves to receive charity or welfare benefits.
  7. The “incidence” of any tax may not infringe matters reserved by the people. In other words, the people may not be taxed in the exercise of any of their inalienable rights.
  8. The Commerce Clause of the Constitution is not an “interstate commerce clause.” It only allows Congress to regulate or eradicate barriers to interstate commerce imposed by state laws. Congress has no subject matter jurisdiction over interstate commerce, per se.
  9. Just because parties to a commercial transaction live in separate states, does not make that transaction subject to federal regulation. Nor is this changed by the legal fiction that the parties are using an “instrumentality of interstate commerce” (mail, telephone, railroad, the internet, etc.).
  10. Purely private acts which merely affect commerce, or affect commerce in the aggregate, are not regulable by Congress.
  11. There is no such thing as a “dormant” or “negative” Commerce Clause, limiting state laws in the absence of federal legislation. Courts have no power to regulate commerce when Congress has not first spoken. Further, federal courts have no general “common law” jurisdiction.
  12. The Necessary and Proper Clause does not grant any unnamed or implied powers of Congress. It merely allows Congress to use whatever means are necessary and proper, to carry out the powers expressly enumerated in the Constitution.
  13. Congress is not authorized to form any corporation which is not directly controlled by a branch of the United States. In other words, Congress may not form any so-called independent agencies, which ultimately comprise an unauthorized fourth branch of the federal government.
  14. The constitutional principle of enumerated powers is an absolute requirement, not a mere suggestion. There are no implied powers of Congress. Some of the many powers Congress regularly exercises but has not actually been granted include:
    •   Police power (such as authorizing a federal police bureau, aka the FBI)
    •   Oversight of Executive Branch functions
    •   Jurisdiction over education and schools, other than military academies
    •   Jurisdiction over health care or health care insurance
    •   Authority to regulate labor markets, labor unions, collective bargaining agreements, wage and hour laws, minimum wage laws, and anti-discrimination laws
    •   Investigatory powers
    •   Judicial powers, including the power to take testimony, administer testimonial oaths, issue subpoenas, and/or issue contempt orders
  15. It is fundamentally not a purpose of the federal government to provide an economic “safety net” for its citizens, nor to guarantee any citizen a fair standard of living. There is no such thing as a basic or fundamental human right to education, health care, a living wage, housing, or internet access.
  16. The mere fact circumstances may be the same or similar among the various states does not make any matter a national problem subject to federal jurisdiction. Neither Congress nor the courts have plenary power to decide whether a subject demands national unity or local diversity.
  17. State and federal purposes are neither “shared” nor concurrent, but are mutually exclusive. If a legitimate national purpose and a legitimate state purpose conflict, the will of Congress is supreme.
  18. Federal legislation, to be valid, requires both that Congress have subject matter jurisdiction, and an enumerated federal purpose. The “public interest, convenience or necessity” is not a sufficient basis for federal legislation.
  19. Legislative power may not be delegated by Congress to anyone outside of Congress, whether to another branch of the government, or to any “independent” federal agency.

To be continued …

Previous: The Failure of Conservative Judges


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